Mount Peter Road No2 Pty Ltd & Mount Peter Road Pty Ltd v Cairns Regional Council [2026] QPEC 9

[27] As demonstrated in [23], the proposal before the Court is more than general or conceptual. It is a significant residential development with a specific and precisely defined reconfiguration. This large-scale, long-term development proposal must be assessed to determine its impacts on the locality and to determine whether it complies with the assessment benchmarks.

[28] The Planning Act and the Planning and Environment Court Act 2016 (Qld) (PECA) form the statutory assessment regime under which the appeal is to be determined. The court must confirm, change, or set aside the decision being appealed against.[20] This appeal is by way of hearing anew.[21] The Appellants bear the onus of establishing that the appeal should be allowed.[22]

[29] The development application is code assessable. Code assessment must be carried out only (1) against the assessment benchmarks in a categorising instrument for the development, and (2) having regard to any matters prescribed by the Planning Regulation 2017 (Qld) (Regulation).[23] The CairnsPlan v3.1 (CairnsPlan) is the relevant categorising instrument. [24]

[30] Relevantly, s. 26 of the Regulation provides that code assessment must also be carried out (only to the extent it is relevant to the development) against the assessment benchmarks stated in the State Planning Policy 2017, Part E,[25] as only the State Planning Policy 2014 has been integrated into CairnsPlan; and the Local Government Infrastructure Plan (LGIP).[26] The assessment must also be carried out having regard to any development for, and any lawful use of, the premises or adjacent premises and the common material.[27]

[31] Section 59(3) of the Planning Act requires the decision to be based upon the assessment of the development. After carrying out the assessment, the decision-maker is required to decide the application in accordance with s. 60(2) of the Planning Act. Section 60(2)(a) of the Planning Act mandates approval in the event of compliance with the assessment benchmarks. Section 60(2)(b) confers a discretion to approve the application even when there is non-compliance with some of the assessment benchmarks. The discretion conferred has been considered by the Court. As observed by Williamson KC DCJ in Klinkert v Brisbane City Council:

"The discretion is expressed in permissive (may) and broad terms. It is subject to an important constraint, namely the constraint expressed in s 59(3) of the PA requiring the decision to be based on the assessment carried out pursuant to earlier provision of the Act, which in this case includes, inter alia, s 45."[28]

[32] Unlike impact assessment, the Court cannot have regard to relevant matters as defined in s 45(5) of the Planning Act. The process for assessing and deciding code assessable development applications is "much more constrained"[29] and is described as "bounded".[30]

[33] The Appellants rely upon the Court of Appeal's decision in Reservilt Pty Ltd v Maroochy Shire Council [2002] QCA 367; [2003] 1 Qd R 548 to submit that:[31]

The Court must allow the application unless it is satisfied that compliance cannot be achieved by imposing conditions. Although the Appellants bear the onus of establishing that the appeal should be upheld, in order to do that all it had to do, relevantly, was to cause the Court to fail to be satisfied that compliance with the code cannot be achieved by imposing conditions. It is up to the Council to positively satisfy the Court of that. (footnotes and emphasis removed)

[34] The Respondent says it is not for it to so positively satisfy the Court. It submits that the decision in Reservilt must be considered in the context of the original judge's decision. That is, where neither of the expert's evidence was accepted or preferred. It submits that this is not a case where that conclusion would arise, as its experts should be preferred for all issues in dispute.

[35] It is appropriate to make some initial observations about the decision. Reservilt was a decision under the Integrated Planning Act 1997 (Qld). Under that Act, the power to refuse a code assessable application only arose if "compliance with the code [could not] be achieved by imposing conditions."[32] This is a similar power to that provided in s 60(2)(d) of the Planning Act. However, the precise words in the provision are different, and are in a different statutory context. The onus was on the appellant under the Integrated Planning Act 1997 (Qld),[33] as it is under the Planning Act.

[36] It is also necessary to consider the precise error found by the Court of Appeal. The trial judge reached a conclusion that "the applicant had failed to satisfy the onus upon it to prove that compliance with the Code could be achieved by imposing conditions".[34] The Court of Appeal found that the trial judge stated the test wrongly. The trial judge was "not in a position to reject the evidence of one of the witnesses or to confidently prefer one to the other". It was in those circumstances that it was necessary to revert to a consideration of the onus of proof.

[37] I am not persuaded that Reservilt has application in the present circumstances. The Appellants positively assert that if the development application does not comply with the impugned assessment benchmarks, it can be conditioned to comply.[35] Having made the assertion, it is for the Appellants to satisfy the Court that compliance with the codes can be achieved by the imposition of conditions.

[38] The decision of Reservilt might apply if the evidence of neither expert is accepted or preferred. That is not the case here. Therefore, it is unnecessary for me to finally determine this question.

[39] Section 43(2)(c) of the Planning Act confirms that for code assessment, an assessment benchmark does not include a strategic outcome under s. 16(1)(a). Section 16(1)(a) of the Planning Act provides that "a planning scheme must identify strategic outcomes for the local government area to which the planning scheme applies". Section 3.1(3) of the CairnsPlan confirms that the Strategic framework includes strategic outcomes for development in the planning scheme area and elements, specific outcomes, and land use strategies that are directly related to these strategic outcomes.

[40] The Respondent accepts that the Strategic framework is not an assessment benchmark, but says that the Strategic framework is nonetheless applicable because the notes to PO1/AO1.1 of the Mount Peter local plan code and PO14 of the Reconfiguring a lot code call up the Planning Scheme Policy - Structure planning, which in turn requires that the structure plan "must not conflict with or compromise the achievement of the Strategic Framework".[36]

[41] The notes to PO1/AO1.1 of the Mount Peter local plan code and PO14 of the Reconfiguring a lot code are part of the CairnsPlan.[37] The provisions of the Strategic framework provide context when construing the codes, but they are not identified as assessment benchmarks. No assessment is to be carried out against the provisions of the Strategic framework.

[42] The issue for determination is whether, on the basis of the evidence, I can be satisfied that the proposal complies with the codes or can be conditioned to comply with the codes.

[43] Mount Peter was declared a Master Planned Area in 2008, recognising the area as the priority urban growth corridor for Cairns. The Far North Queensland Regional Plan 2009-2031 also supports the Mount Peter Master Planned Area as a growth area.

(a) designated in the "Urban" area on the Strategic Framework Settlement Pattern Map;

(b) in the Low-medium density residential zone;

(c) subject to a number of overlays including, relevantly for the appeal, the Natural Areas Overlay and Transport Network Overlay;

(d) is located within the Mount Peter local plan area and within that area in:

(i) Precinct 2 - Cooper Road and the "Initial Development Area" on the Local Plan Precincts map;

(ii) partly in the "Future urban communities" precinct and partly in the "Conservation/Open space" precinct in the Local Plan Sub-Precincts Map;

(e) mapped as containing MSES - Wildlife Habitat (Endangered or Vulnerable) and MSES Regulated Vegetation in the Natural Areas Overlay Map; and

(f) approximately 450m outside the Priority Infrastructure Area Boundary of the LGIP.

[45] The hierarchy of assessment benchmarks provides, relevantly:[38]

(a) overlay codes prevail over all other components, to the extent of the inconsistency;

(b) local plan codes prevail over zone codes, use codes, and other development codes to the extent of the inconsistency; and

(c) zone codes prevail over use codes and other development codes to the extent of the inconsistency.

[46] Section 5.4(3)(a)(iii) of the CairnsPlan provides that code assessable development:

(B) the performance or acceptable outcomes - complies with the code;".

Construction of s. 5.4(3)(a)(iii) of the CairnsPlan

[47] The parties provided written submissions addressing how compliance with the codes is achieved.

[48] Section 1.3.3(1) of the CairnsPlan provides that "a word followed by ';' or ', and' is considered to be 'and'."

[49] The Respondent submits that there are three pathways open for the Appellants to demonstrate compliance with a code. That is:

(a) compliance with the purpose and overall outcomes of a code; or

(b) compliance with the performance outcomes of a code; or

(c) compliance with the acceptable outcomes of a code.

[50] Further, it says that the construction of this provision is not determinative of the appeal as a whole as there is clear non-compliance with each of the acceptable outcomes, performance outcomes and overall outcomes put in issue, resulting in non-compliance with each code in issue.

[51] The Appellants says that there are two pathways to compliance; compliance with the purpose and overall outcomes and either the performance outcomes or the acceptable outcomes.

[52] The parties referred to a number of authorities, including Trinity Park Investments Pty Ltd v Cairns Regional Council [2023] QPELR 763; [2022] QPEC 15 (Trinity Park), Body Corporate for Roydon Community Titles Scheme 1487 v Cairns Regional Council [2020] QPEC 60 (Roydon), and Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QPEC 6 (Yorkeys Knob)

[53] In Trinity Park at [12], two pathways were open for demonstrating compliance with the code. In Roydon at [41] and Yorkeys Knob at [19], three pathways were open for demonstrating compliance with the code. In all three cases, the construction of the provision was not in dispute. The inconsistency in construction of this provision provides little assistance in determining the appropriate construction.

[54] The Respondent made submissions comparing the words and structure of the CairnsPlan to the Brisbane planning scheme. In support of this submission it referred to Mariott v Brisbane City Council [2015] QPEC 45, amongst other authorities.[39] The corresponding provision in the Brisbane planning scheme is:[40]

"By section 5.3.3(c)(iii) of CP2014, development that complies with:

(a) the purpose and overall outcomes of the code, complies with the code; and

(b) the performance or acceptable outcomes, where prescribed, complies with the purpose and overall outcomes of the code."

[55] I do not find the decision in Mariott or these other authorities helpful in determining the appropriate construction of the CairnsPlan. First, because it deals with a different planning scheme. Second, because the Brisbane planning scheme provision uses different words and has a different structure to the CairnsPlan. The Brisbane planning scheme includes the phrase "complies with the code" at the end of the first subparagraph which deals with the purpose and overall outcomes of the code. I do not consider the Brisbane scheme provisions to be a useful comparison.

[56] Kefford DCJ recently dealt with a similar issue in Stephen Family Pastoral Pty Ltd as Trustee for the Stephen's Family Pastoral Trust v Logan City Council & Loganview Road North Pty Ltd [2025] QPEC 27. As her Honour identified "the same principles that apply to statutory construction apply to the construction of planning documents" and "the planning scheme is to be read as a whole and in a way that is practical and intended to achieve a balance between the individual outcomes".[41]

[57] In that decision, the relevant provision listed '(A); (B); or (C)'. In issue was whether a disjunctive 'or' or conjunctive 'and' should be read after item (A) in the list. The Court noted that an equivalent s1.3.3 provision presented an "obstacle" to the ordinary grammatical construction of a provision of the scheme. Her Honour determined that the ordinary grammatical construction of the provision was preferred over the strict application of the interpretation provision, when looking at the scheme and consequences holistically. However, the provision in Stephen Family Pastoral is quite different to that in the CairnsPlan, where there is neither 'or' nor 'and' included in the list. It is also pertinent to note that her Honour was construing a particular provision. Her Honour's decision should not be relied upon as a general rule for disregarding interpretation provisions in planning schemes.

[58] Principles of statutory construction require that the meaning of a provision be ascertained by reference first to the text of the statute, and then to its context and purpose.[42] The CairnsPlan has a clear interpretation provision as to how a semicolon (';') should be read. Extrinsic material may only be relied upon where there is ambiguity, if the ordinary meaning would lead to a manifestly absurd or unreasonable result, or to confirm the ordinary meaning.[43] To look to extrinsic material and give it more weight than the interpretation provision within the text of the CairnsPlan would be an incorrect approach here.

[59] The Respondent contends that the use of subparagraphs (A) and (B) in s. 5.4(3)(a)(iii) supports the three pathways construction. I am not persuaded that to give meaning to the subparagraphs requires the adoption of the three pathways approach. Meaning can be attributed to the subparagraphs under the two pathways approach.

[60] The Respondent further submits that consideration of s. 5.4(3)(a) in its entirety supports a preference for the three pathways construction. The fact that the words 'and' or 'or' are absent from the provision as a whole does not support the Respondent's position. When the provision is read as a whole, the concluding words of the provision "- complies with the code" support the construction that there are two pathways to compliance.

[61] The Respondent's reliance on grammatical guides, considering that a '-' can be read as a comma, is weak. While I accept this proposition, in the context of the provision in dispute it does not assist the Respondent's position. To read the '-' as a comma would cause subparagraph (A) to be incomplete. This is not a preferable construction. Further, to read the '-' as a comma would not make the three pathway construction any more preferable than the two pathways.

[62] The construction which provides for two pathways to compliance with the codes is preferable because it applies an ordinary grammatical construction and the interpretation provision.

[63] The local government infrastructure plan in the CairnsPlan (LGIP) guides how essential services including roads, water, sewerage, parks, and community facilities, are to be delivered to support growth in the region. This is reflected in the purpose of the LGIP,[44] which includes integrating infrastructure planning within the CairnsPlan's identified land use planning.

[64] Code references on each of the LGIP maps help identify the relevant piece of infrastructure, its length, its status (existing or planned), the planning assumptions which underpin its delivery, and the planned timing and cost required for it to be delivered. They also assist developers to identify which pieces of infrastructure may need to be delayed or brought forward to service a particular parcel of land, and the location of that infrastructure.

[65] The purpose of the Low-medium density residential zone code is to provide for a variety of dwelling types and community uses, and small-scale services, facilities and infrastructure, to support local residents. This purpose will be achieved through overall outcomes that provide for, amongst other things, development which reflects and responds to the natural features and constraints of the land.

[66] The purpose of the Mount Peter local plan code is to facilitate the overall outcomes and precinct specific outcomes for the code "through a well-planned, strategic and integrated approach to development of new communities in the Southern growth corridor."

[67] The purpose of the Natural areas overlay code is to protect the natural areas of the region through various measures.

[68] The purpose of the Transport network overlay code is to "ensure that development provides transport infrastructure that supports a safe, efficient transport network, including the active transport network.

[69] The State Planning Policy (SPP) seeks to ensure, amongst other matters, that:[45]

(a) development achieves a high level of integration with infrastructure planning to:

(i) promote the most efficient, effective and flexible use of existing and planned infrastructure;

(ii) realise multiple economic, social and environmental benefits from infrastructure investment;

(iii) ensure consideration of future infrastructure needed to support infill and greenfield growth areas;

(iv) optimise the location of future infrastructure within communities to provide greater access to facilities and services and to enable productivity improvements.

(b) development occurs in areas currently serviced by State and/or local infrastructure and associated services; or in a logical and orderly location, form and sequence to enable the cost-effective delivery of State and local infrastructure to service development.

[70] The issues in dispute comprise the Respondent's Third Further Amended Reasons for Refusal incorporating the further and better particulars,[46] and the reasons for approval in paragraphs [11] to [14] of the Notice of Appeal.

[71] While the issues in dispute narrowed, a significant number of provisions in both the SPP and the CairnsPlan remain in dispute. Issues of structure planning, out of sequence development, inefficient delivery of infrastructure, subdivision layout and lot design, terrestrial ecology, aquatic ecology, stormwater (quantity and quality), groundwater, traffic and conditions are raised.[47] The provisions in dispute are contained in Annexure A to these reasons.

[72] The Respondent says that the proposed development does not comply with, or it has not been demonstrated that the proposed development can comply with (even with the imposition of lawful conditions) the following assessment benchmarks relevant to structure planning:[48]

(a) SPP State interest - infrastructure integration, (2)(a) - (d), (3)(b), and (4);

(b) Mount Peter local plan code: Purpose 7.2.7.3(1), Overall outcomes 7.2.7.3(2)(a), (c), (e), (h), (i), (p) and Performance outcomes PO1/AO1.1, PO3, AO3.2, and PO4;

(c) Reconfiguring a lot code: Overall outcomes 9.3.8.2(2)(d), (i) and PO14(a), (d) and (e); and

(d) Planning scheme policy - Structure planning 3.1(3), 3.2(2) and (3), 3.3.

[73] The Appellants say that the structure plan lodged with the application provides an integrated and orderly framework for the residential development of the Land. The application does not seek approval of a structure plan; rather the structure plan provides supporting information relevant to the assessment of the development application. The Appellants say that the local area and infrastructure planning done for the area in which the Land is located leaves no uncertainty as to the broader network of requirements. Absent a structure plan, the Appellants rely upon the evidence before the Court to provide the information that would, they say, be included in a structure plan; that the structure planning exercise is intended to provide information and none of it is missing.[49]

[74] The Respondent says that the Mount Peter local plan code calls for a structure plan to be prepared as a means of demonstrating that the development outcomes for the local plan area have been integrated.[50] It is a document which, "once adopted or approved" will guide and inform subsequent development of the structure planned area.[51] Further, the Respondent contends that it is unclear which structure plan is relied upon by the Appellant:

(a) the Edenbrook Structure Plan document and accompanying Structure Plan maps which formed part of the original development application; or

(b) the updated Structure Plan maps contained in Exhibit 12A.

[75] The maps comprising Exhibit 12A have been updated to reflect the amended form of the proposed development. The Edenbrook Structure Plan document has not. There is no Structure Plan for the proposal before the Court.

[76] PO1 of the Mount Peter local plan code requires "[a] structure plan is prepared" which addresses specific matters. AO1.1 requires that "A structure plan supports development proposing reconfiguration of land". Each provision includes "Note - Planning scheme policy - Structure planning provides guidance on the preparation of structure plans."

[77] 'Structure plan' is not a defined term in the CairnsPlan. However, the Planning Scheme Policy - Structure planning (PSP) provides some guidance. Under the heading "Information Council may request" and subheading "S3.1 Requirement to prepare a Structure Plan" it states relevantly:

"(1) A structure plan is required to accompany applications for development:

(b) Located within the Mount Peter Local Plan area (where a structure plan is not already approved by Council)."

The application is for development within the Mount Peter local plan area. A structure plan under the CairnsPlan is more than just the provision of information. This is evident from a reading of the PSP. That the structure plan is a document that may be approved or adopted by the Council is envisaged by s 3.1(2) of the PSP. The structure plan then guides and informs subsequent development of the structure plan area. The PSP goes on to identify the information that should be included in the structure plan.

[78] The application was accompanied by a structure plan. In the absence of a structure plan addressing the proposal before the Court there is not strict compliance with PO1 and AO1.1 of the Mount Peter local plan code. However, in the circumstances, this is not determinative of the appeal. If the application was approved the Edenbrook structure plan document could be updated to reflect the evidence.

[79] The provisions in issue relevant to structure planning raise matters of sequencing and the efficient provision of infrastructure, and overlap with matters raised in consideration of those issues. To avoid duplication, the remaining provisions have been dealt with in the course of the consideration of other issues below.

[80] The Respondent says that in terms of the sequencing of development, the proposal does not comply with, or has not been demonstrated that it can comply with (even with the imposition of lawful conditions) the following assessment benchmarks:

(a) SPP: State interest - infrastructure integration - (2)(a) - (d), (3)(b), and (4), State interest - transport infrastructure (2) and (3);

(b) Mount Peter local plan code: Purpose 7.2.7.3(1), Overall outcome 7.2.7.3(2)(c) and (i), Performance outcome PO1(a), (g), Acceptable outcome AO1.1;

(c) Infrastructure works code: Overall outcomes 9.3.5.2(2)(a) and Performance outcome PO13; and

(d) The Local Government Infrastructure Plan; especially section 4.1(2)(a) and (d).

[81] The Mount Peter local plan code envisages an "integrated approach to development" with land to be developed "sequentially from the north".[52] Reasons for this include ensuring the needs of the community, including for a local centre, are met.[53] It envisages that development contributes to an integrated and coordinated community and "provides a structure that considers future development, infrastructure provision, land use allocations and defined places of activity, recreation, living and natural environment."[54] Such development will also facilitate the provision of timely infrastructure to the community_._

[82] The overall outcomes for the Low-medium density residential zone code envisage the provision of community facilities, open space and recreational areas, and appropriate infrastructure to support the needs of the local community.[55]

[83] The overall outcomes and the performance outcomes of the Mount Peter local plan code require a cautious approach be taken to extending development further to the south of Mount Peter Estate. A central consideration in the sequencing of development is ensuring that infrastructure and services are delivered to the local community in a safe, orderly, and efficient manner. This sentiment was captured by Mr Ovenden who acknowledged that provision of efficient, cost-effective, and orderly infrastructure is central to good town planning.[56]

[84] The Land is in the southern most part of Precinct 2 and within the "Initial Development Area". While the existing developed part of the Mount Peter Estate is approximately 450m from the northern most section of the Land, from a traffic perspective this is in the context of:

(a) south of MacKillop Road, Mount Peter Road narrows to a basic narrow rural road standard, lacking shoulders, street lighting, and pathways;

(b) approximately 1300m of basic rural road between MacKillop Road and the development's proposed northern intersection;

(c) approximately 1850m of basic rural road between MacKillop Road and Mohammed Access which is the proposed collector road providing the majority of the proposed lots with access to Mount Peter Road; and

(d) within that 1850m section there is the narrow road crossing of Sandy Creek and the Mohammed Access cane rail spur line.[57]

[85] An examination of the existing development in the area (as demonstrated by the aerial photographs) and the approvals discussed at [14] to [19] reveal that the present residential development is located towards Edmonton, and does not extend towards the Land. I accept the evidence of Mr Buckley that the Land is presently isolated from urban development. It is in a rural setting, despite its residential zoning and the nearby approvals. This isolation arises because development of land to the north has not occurred.

[86] Stages 1 to 33 of the proposal are located south of Sandy Creek and are proposed to be developed between 2028 and 2045. That development occurs centrally to the Land and in the initial stages is located more than 1km from the existing urban form.[58] It is not until stage 34, anticipated to occur in 2042, that development proceeds on the northern portion of the Land.[59] Thus, the isolation of this large-scale residential development from existing urban development will continue for more than a decade.

[87] The development is not a small and inconsequential extension of the urban front. Consequently, it is essential that it is demonstrated that the desired standards of service are achieved and maintained, and the proposal does not prejudice future development of the locality.

[88] The proposed development is isolated from existing development and existing services,[60] and will be for some time. The development will require the delivery of trunk infrastructure in a manner that is inconsistent with the timing for that planned infrastructure within the LGIP and is inefficient.[61] These inefficiencies are evident with respect to transport, wastewater and water supply infrastructure. This is inconsistent with the Mount Peter local plan code's integrated approach to development sought to be achieved by sequential development from the north. The proposal does not comply with PO3 of the Mount Peter local plan code. The failure to integrate infrastructure planning with the land use planning in the CairnsPlan is contrary to s4.1(2)(a) of the LGIP. That the delivery of transport infrastructure may involve works 'thrown away' (i.e., works constructed that must later be removed or replaced)[62] is inconsistent with the efficient and orderly planning and provision of trunk infrastructure and contrary to s.4.1(2)(d).

[89] As the Land is isolated from the urban facilities and the delivery of infrastructure is inefficient, the proposed development will neither contribute to an "integrated and coordinated community" nor provide a structure that considers future development and the provision of road and pathway infrastructure. For these reasons, the proposed development does not satisfy the Purpose or OO2(i) of the Mount Peter local plan code.

[90] In the absence of connected infrastructure networks, I am not persuaded that the development outcomes have been integrated with the precinct specific outcomes for development "sequentially from the north" and with respect to transport, water, and wastewater infrastructure networks. For these reasons OO2(c) and PO1 of the Mount Peter local plan code are not met.

[91] As to the efficient delivery of infrastructure, the Respondent alleges that the proposed development does not comply with, or it has not been demonstrated that the proposed development can comply with (even with the imposition of lawful conditions) the following assessment benchmarks:

(a) SPP: State interest - infrastructure integration (1), (2) (3)(b), and (4); State interest - transport infrastructure (2) and (3);

(b) Mount Peter local plan code: Overall outcome 7.2.7.3(2)(i) and Performance outcome PO1(g), Acceptable Outcome AO1.1;

(c) Infrastructure works code: Purpose 9.3.5.2(1), Overall outcomes 9.3.5.2(2)(a) and Performance outcomes PO5, PO6, and PO13; Acceptable outcomes AO5.1 or AO5.3, AO6.1 or AO6.3; and

(d) The Local Government Infrastructure Plan; especially section 4.1(2)(a) and (d).

[92] The Respondent says that the proposed development will require the delivery of significant trunk infrastructure in a manner that is inconsistent with the timing for that planned infrastructure within the LGIP and it has not been demonstrated that trunk infrastructure will be delivered in an orderly and efficient manner. These inefficiencies are evident with respect to infrastructure for transport (including roads and pathways), wastewater and water supply.

[93] The Appellants say that analysis of the LGIP establishes that trunk infrastructure has been planned to meet the demand for population growth consistent with CairnsPlan's intention and in a manner that achieves the desired standards of service. They submit the infrastructure proposed by the LGIP will adequately accommodate the proposal and that differences as to timing are not material, are without adverse consequence and can be conditioned.

[94] The inclusion of the Land in the Low-medium density residential zone, and the Initial Development Area of the Mount Peter local plan code is to be balanced with the efficient delivery of infrastructure to serve the community.

[95] Efficiency and transparency in the planning and provision of trunk infrastructure are central to the purpose of the LGIP. The LGIP identifies those areas that are designated as within the priority infrastructure area (PIA). The purpose of declaring the PIA is to identify the area prioritised for the provision of trunk infrastructure to service the existing and assumed future urban development up to 2028.[63] The Land sits outside the PIA. The location of the Land outside the PIA is not determinative - the PIA is simply the area prioritised for the provision of trunk infrastructure. The plans for trunk infrastructure identify the trunk infrastructure networks intended to service the existing and assumed future urban development at the desired standard of service.[64]

[96] The purpose of the Mount Peter local plan code is to facilitate in the southern growth corridor "a well-planned, strategic and integrated approach to development of new communities". This purpose is achieved by development contributing to an "integrated and coordinated community" that considers future development and infrastructure provision. Integration is facilitated by development "sequentially from the north" with areas currently used for primary production continuing in that use for the "longest extent possible".

[97] To ensure that planning for the area is not compromised, it is essential that it is established that appropriate, efficient and orderly infrastructure is or can be provided to support the development and that the infrastructure does not prejudice the future development of the locality. This is particularly important in the present circumstances due to the large scale of the proposal and the constrained nature of Mount Peter Road, with the rail line located on the western side in privately owned land.

[98] The relevant transport infrastructure and its approximate location and extent are identified in Exhibits 34 and 38. These items of infrastructure can be summarised as follows:

(a) the Mount Peter Road upgrades: starting from the north of the Land, transport infrastructure items TRF413, TRF426 and TRF427 (each estimated for delivery by the LGIP in 2036) represent the extent of ultimate upgrades required for Mount Peter Road. They contemplate an upgrade of Mount Peter Road from a two-lane rural, undivided sealed cross-section, to a four-lane sub-arterial road through to the crossing at Sandy Creek Bridge (TRF426), and then converting to a two-lane sub-arterial road until its connection with Maitland Drive (TRF 427);

(b) the Mohammed Access upgrade: TRF420 (estimated for delivery by the LGIP in 2028) is a road designed to ultimately link to the Mount Peter Estate to the north of the Land into Mohammed Access;

(c) the footpath upgrades: the LGIP contemplates the delivery of pedestrian footpaths PWF154 in 2026 and PWF155 in 2035, along the full extent of Mount Peter Road, from approximately MacKillop Road to Maitland Road;

(d) the bridge upgrades: as part of these works an upgrade to the Sandy Creek Bridge, SBF20 (estimated for delivery in 2031), and the Grays Creek Bridge, SBF23, is proposed; and

(e) the intersection upgrades: ISF22, estimated for delivery in 2031, contemplates a signalised intersection in the north of the Land. IRF20, estimated for delivery in 2031, is a roundabout at the intersection of Mohammed Access and Mount Peter Road.

[99] To facilitate the provision of this infrastructure the Appellants propose conditions requiring:

(a) land dedications to facilitate the Mount Peter Road upgrades Mohammed Access Upgrades and intersection upgrades;[65] and

(b) construction of a section of PWF154 prior to the creation of Stage 1 lots.[66]

[100] The Appellants propose a condition requiring a traffic impact assessment (TIA) be submitted with each subsequent development application for reconfiguring a lot sought under the preliminary approval. This will result in a piecemeal approach to traffic impact analysis and will not ensure the efficient delivery of traffic infrastructure. In the event a future TIA demonstrates that interim road works are required, how these interim works and their subsequent upgrade to the ultimate works might be paid for and how they integrate into the transport network are not established as no analysis of the network has been undertaken.[67] Conditions can be imposed to resolve the costing issues, but the provision of interim works is inefficient. The imposition of a condition requiring a TIA of the proposal does not assist in ascertaining whether the proposal should now be approved because it does not enable the Court to be satisfied that transport infrastructure can be efficiently delivered, that the infrastructure will integrate into the transport network and can be accommodated within the available road reserves.

[101] For these reasons and having regard to my findings in [152], the development does not contribute to a safe and efficient transport network. The proposal does not comply with the Purpose and OO2(a) of the Infrastructure works code.

(a) WMF114 estimated for delivery by the LGIP in 2031;

(b) WMF117 estimated for delivery by the LGIP in 2036; and

(c) WMF125 estimated for delivery by the LGIP in 2036.

[103] The Appellants' conditions of approval propose that these water mains are constructed prior to the delivery of the Stage 1 lots, that is before 2028. Mr Hoban also proposed bringing forward WMF125 to coincide with the delivery of the Mohammed Access road (TRF420), estimated for delivery in 2028. Building the road at the same time as the water main will result in efficiencies. He conceded that WMF042 would also need to be constructed if not already constructed. I proceed on the basis that a condition can be imposed requiring the provision of this additional infrastructure. The implications for the network arising from this significant change from the LGIP planned timing are relevant.

[104] These items of water infrastructure will extend an existing water mains line that currently terminates in the eastern part of Mount Peter Road reserve adjoining the existing residential development to the north of the Land. They will extend that line south within the Mount Peter Road reserve to the Mohammed Access intersection and then east along the Mohammed Access. It is logical to establish water mains at the commencement of a development to ensure there is water supply for construction, domestic uses, and firefighting.[68]

[105] While Mr Hoban observed that these infrastructure items could be accommodated in the road reserve on either the eastern or western side of Mount Peter Road or even down the centre median, the location of these items of infrastructure has not been considered. No cross sections have been prepared demonstrating this infrastructure can be accommodated in the road reserve.

[106] As the ultimate location for these items of LGIP infrastructure is unknown, it is not established that the infrastructure can be accommodated at all nor provided in an orderly and efficient manner. In the absence of this evidence it has not been established that provision of this infrastructure in an order other than as provided for in the CairnsPlan does not compromise future development and overall LGIP planning.

[107] The following wastewater items of infrastructure are relevant to this consideration:

(a) SPSF39 - future pump station estimated for delivery by the LGIP in 2031;

(b) PMF009 - pressure main estimated for delivery by the LGIP in 2036;

(c) PMF010 - pressure main estimated for delivery by the LGIP in 2031;

(d) PMF012 - pressure main estimated for delivery by the LGIP in 2031;

(e) GMF004 - gravity main estimated for delivery by the LGIP in 2031;

(f) GMF005 - gravity main estimated for delivery by the LGIP in 2031;

(g) GMF008 - gravity main estimated for delivery by the LGIP in 2031;

(h) GMF009 - gravity main estimated for delivery by the LGIP in 2036;

(i) GMF010 - gravity main estimated for delivery by the LGIP in 2036;

(j) GMF011 - gravity main estimated for delivery by the LGIP in 2036; and

(k) SPFS36 - future pump station estimated for delivery by the LGIP in 2041.

[108] The flow order of the wastewater gravity mains from south to north is GMF035, GMF036, GMF012, GMF011, GMF010 and GMF009.[69] These ultimately deliver flow to the pump station SPSF39. From SPSF39 there are rising mains, in order PMF012 and PMF010, which firstly deliver flow westwards then northwards. PMF010 then delivers to gravity mains in order GMF130, GMF002 and GMF232 and then onto a manhole at the eastern end of MacKillop Road. That flow enters the existing municipal system eventually reaching the Edmonton Sewerage Treatment Plant.[70]

[109] The Appellants propose a condition requiring construction of items SPSF39, PMF010 and PMF012 prior to the creation of Stage 3 lots, being 2028,[71] bringing forward the delivery of these items. The location of SPSF39 is proposed to change, so that it will also be south of items GMF009, GMF010 and GMF011. There is no commitment to construct any of items GMF009, GMF010, GMF011, GMF012, GMF002, GMF130 and GMF232.[72] The items of infrastructure proposed to be provided prior to the creation of Stage 3 lots are not sufficient to connect wastewater from the proposal to the existing wastewater network.[73] In the absence of items GMF002, GMF130 and GMF232, estimated to be provided in 2031,[74] and GMF009, GMF010 and GMF011, estimated in 2036, the wastewater infrastructure on the Land will not be connected to the municipal wastewater system, and will not be connected for some years.

[110] Until that infrastructure is connected, wastewater will be stored on site and trucked out regularly. To facilitate this interim proposal an underground storage chamber will be constructed, which will later form a component of the future sewer pump station. This chamber will initially be a connection point for tanker trucks to operate. It will be used as a pump out facility with sewerage transported from the development in tanker trucks. The experts agreed that it is "normal" for tanker trucking to be used during the initial stages of development in circumstances where the ultimate sewerage solution involves a pump station and a rising main. If the rising mains and pump station are constructed ahead of there being sufficient sewerage generation, the infrastructure would effectively be oversized in circumstances where there may be insufficient demand. Insufficient demand can cause blockages and damage the pumps.[75]

[111] Mr Hoban said that the waste would be trucked for about 2 years. There was no evidence about what was expected to occur after that 2-year period and before the connecting infrastructure is constructed, or if the provision of the connecting infrastructure is delayed.

[112] I am not persuaded by the submission that the provision of this infrastructure will facilitate the development of intervening Lot 1. If the development of Lot 1 proceeds prior to Edenbrook being developed, then a condition would be imposed on that development approval requiring the construction of SPSF39 and the two associated rising mains.

[113] The trucking of the waste is a temporary solution. I am not persuaded, in the absence of a plan for the connection of the wastewater infrastructure to the network, that the proposal for the trucking of wastewater is efficient and adequate for the treatment and disposal of wastewater. The development does not provide a connection to the Respondent's reticulated wastewater system. Nor is an on-site sewage treatment and disposal facility proposed. Compliance with PO6, AO6.1, and AO6.3 of the Infrastructure works code is not achieved.

[114] That the wastewater from Edenbrook will not be connected to the network and that there is initially insufficient sewerage generation to support the infrastructure suggests that the development is premature. By failing to connect to the network the proposal does not consider future development and infrastructure provision, contrary to OO2(i) of the Mount Peter local plan code. Further, this demonstrates that the proposal is out of sequence, and results in the inefficient and disorderly delivery of infrastructure.

Conclusion - efficient delivery of infrastructure

[115] The development is out of sequence and inconsistent with the timing of the planned delivery of trunk wastewater, water, and road infrastructure under the LGIP. It is inconsistent with the location of wastewater infrastructure under the LGIP. The wastewater is not connected to the network in the initial stages of the development. It is not established that it can ultimately be connected because the location of infrastructure under the proposal is different to that proposed in the LGIP. Due to this connectivity issue, the delivery of the infrastructure is not efficient and orderly. It has not been demonstrated that the proposed trunk sewer and trunk water infrastructure would be compatible with the trunk infrastructure planned to be delivered under the LGIP. This means that the proposal does not provide a "well-planned" and "integrated approach" to the development of new communities. Those factors mean that the Respondent's significant infrastructure plans as reflected in the LGIP are not adequately reflected by the proposal.

[116] For these reasons, I am not persuaded that this development within the Initial Development Area "does not compromise the overall outcomes for development of the balance of the local plan area'. It may impede the provision of infrastructure for future communities. There is non-compliance with OO2(e), PO4 and AO3.2 of the Mount Peter local plan code.

[117] This noncompliance cannot be cured by the imposition of conditions, including a condition requiring payment of the costs associated with bringing forward the requisite items of infrastructure. In the absence of a traffic assessment for the proposal beyond the boundaries of the Land,[76] and identification of the nature and design of the requisite transport, water, and wastewater infrastructure, the Court cannot be satisfied that the infrastructure issues can be resolved in a manner that ensures the delivery of an efficient and orderly infrastructure network facilitating an integrated community.

[118] For these reasons, the proposal does not satisfy:

(a) the Purpose, OO2(c), OO2(h), OO2(i) and PO1(g) of the Mount Peter local plan code;

(b) Purpose 2(d) of the LGIP;

(c) PO5 and the corresponding acceptable outcomes of the Infrastructure works code; or

(d) Items 1, 2, 3b and 4 of the SPP: State interest - infrastructure integration and items 2 and 3 of the SPP: State interest - transport infrastructure.

[119] On matters of traffic the Respondent says the development does not comply, or it has not been demonstrated that it can comply (even with the imposition of lawful conditions), with the following assessment benchmarks:

(a) SPP: State interest - transport infrastructure (2) and (3);

(b) Transport network overlay code: Overall outcomes 8.2.15.2(2)(b), (c), and (d), Performance outcomes PO1, PO2, PO4, and PO6; Acceptable outcomes AO1.1, AO1.2, AO1.3, AO2.1, AO4.1, AO4.2, AO4.3, AO4.4, AO6.1 and AO6.2;

(c) Mount Peter local plan code: Purpose 7.2.7.3(1), Overall outcomes 7.2.7.3(2)(d), (h), (i), (o), (p) and (q), Performance outcomes PO1 and PO3; Acceptable Outcomes AO1.1 and AO3.2;

(d) Infrastructure works code: Purpose 9.3.5.2(1), Overall outcomes 9.3.5.2(2)(a) and (d), Performance outcomes PO1, PO8, PO12 and PO13; Acceptable outcomes AO1.1, AO1.2, AO8.1, AO12.1 and AO12.2; and

(e) Reconfiguring a lot code: Overall outcomes 9.3.8.2(2)(d), and (i), Performance outcomes PO5, PO10, PO15, PO26, and PO27; Acceptable outcomes AO15.1, AO15.2 and AO15.3.

[120] The Respondent says that the proposal will give rise to significant unacceptable traffic impacts and non-compliance with the assessment benchmarks such that refusal of the application is called for on this issue alone.

[121] The Appellants propose conditions to address traffic issues requiring:[77]

(a) the submission of an updated TIA with each development application for reconfiguring a lot made under the approval;

(b) the dedication of land for transport infrastructure Items TRF420, TRF426, TRF427 and IRF20, being the Mohammed Access upgrade, the Mount Peter Road upgrade in the vicinity of the Land, and the roundabout at the intersection of Mohammed Avenue and Mount Peter Road;

(c) prior to Stage 1, and reviewed at each subsequent stage, an audit, and if necessary, design of and carrying out of improvements associated with the visibility and sight lines to the cane rail entrance point on Mohammed Access and Mount Peter Road;

(d) prior to the creation of Stage 1 lots, construct LGIP Item PWF154 (in part) being the pathway connecting the intersection of Mount Peter Road and Mohammed Access with the pedestrian connectivity point on Mount Peter Road providing access to the Cooper Road activity centre;

(e) for any stage which includes development with a frontage to Mount Peter Road or Mohammed Access, a traffic noise impact assessment to identify required acoustic measures;

(f) prior to development of any stage fronting Mohammed Access provide an acoustic fence along the boundaries of those lots adjoining Mohammed Access; and

(g) provide a fence along the interfaces between completed stages of the development and the cane railway.

[122] In addressing the traffic issues the Court was assisted by evidence from Mr Pekol and Mr Hoban for the Appellants and Mr Douglas for the Respondent.

[123] The development application was accompanied by a TIA prepared by Jacobs (the Jacobs TIA). The Jacobs TIA assesses the proposal prior to the approval of the minor change and so is for a proposal different to that now before the Court. For traffic assessment purposes the changed proposal reduced the number of residential lots (from 706 to 539) and changed traffic arrangements.[78] No comprehensive TIA of the current proposal has been undertaken.

[124] The Appellants rely upon the Jacobs TIA, Exhibits 19A and 37, and the conditions at [122] to demonstrate compliance with the codes.

[125] Mr Pekol considers the Jacobs TIA adequately addresses the internal and external traffic impacts of the proposed development on both Council and State controlled road networks. He says this particularly because the application is for a preliminary approval and the Appellants propose conditions requiring an updated TIA with each development application for reconfiguring a lot made under the preliminary approval.[79] He derives support for this approach from the preliminary approval granted by the Respondent for the Pinecrest Estate which contains a condition in similar terms.[80] He considers that the proposed development will not trigger the bringing forward of traffic works identified in the LGIP as the existing transport infrastructure is, from a traffic capacity perspective, adequate for a period of time.[81]

[126] Mr Pekol opines that the proposal is consistent with and supports the LGIP for three reasons. First, residential development of the Land is anticipated in the LGIP.[82] Second, the proposed plan of development accommodates road widening and intersection upgrades consistent with the LGIP. Third, the traffic generated by the proposal and ongoing development in the PIA and the Pinecrest approval would not exceed the traffic carrying capacity of the trunk road network identified in the LGIP.[83] High-level traffic forecasts were prepared for the adjacent section of Mount Peter Road.[84] They were prepared to confirm that Mount Peter Road is presently capable of accommodating the start of the development without upgrade and, that to the extent upgrade is required, it is consistent with the LGIP and does not bring forward this infrastructure. This analysis satisfied Mr Pekol that accounting for the traffic generated by the proposed development, the forecast traffic volumes:

(a) north of Mohammed Access are well below the capacity of the 4-lane road anticipated in the LGIP; and

(b) south of Mohammed Access are well below the capacity of the 2-lane road anticipated in the LGIP.[85]

[127] For these reasons, he concludes that the LGIP road infrastructure proposed for the Mount Peter area has been comfortably designed to cater for traffic generated by the proposal. The effect of Mr Pekol's evidence is that he considers the current standard of the Mount Peter Road sufficient to accommodate the proposal for a period of time, until the LGIP road infrastructure is provided.

[128] As a result, the Court must be satisfied that the existing transport road network, supplemented by the combined pedestrian/cycle pathway PWF154 north on Mount Peter Road, can safely accommodate the initial stages of the proposal, until the LGIP trunk transport infrastructure is provided. The LGIP estimated timing of this infrastructure is set out at [98].

[129] The pathway north, if redesigned as a shared cycle and pedestrian path, would adequately fulfill the dual function of a pedestrian and cycle path for "a fair period of time"[86] and would provide safe passage of pedestrians and cyclists, satisfying Mr Douglas's concerns about sight lines and street lighting. This would provide adequate pedestrian/cyclist linkages north of the Land.

[130] Most of the pathway will be constructed in its ultimate location. However, approximately 450m of the pathway adjoining Lot 1 will be thrown away upon construction of the Mount Peter Road upgrade north of the Land.[87] These works can be conditioned to be undertaken at the Appellants' expense as non-trunk infrastructure. Accordingly, any "thrown away" works would not be at the Respondent's expense.

[131] The provision of the pedestrian and cycle path south of the Land (PWF155) is estimated in 2035. In Mr Pekol's opinion the absence of this path until that time will not give rise to safety concerns because he estimates only 3 to 4 cyclists per day in 2035 and 10 cyclists per day upon completion of development will travel south along Mount Peter Road and Maitland Road to Gordonvale.

[132] I accept Mr Pekol's evidence that the safety risks associated with 3 to 4 cyclists travelling south is low. As observed by the Court on previous occasions a provision requiring an absence of adverse impacts should be construed in a manner requiring that there not be unreasonable adverse impacts arising from the development.[88] However, for these users, the absence of this path is a factor which means the proposal does not facilitate an efficient transport network.

[133] I do not accept that because the LGIP anticipates residential development on the Land and the changed development anticipates a reduced yield, reducing the burden on the transport network, that the Jacobs TIA is sound for determining the impact of this proposal. I am not persuaded that the Jacobs TIA, supported by Exhibits 19A and 37, adequately address the traffic impacts of the proposal on the road network for the reasons that follow.

[134] First, the Jacobs TIA does not address the impact of the proposal. Rather, it assesses the proposal before the minor change, which had a design and yield different to the proposal now before the Court.

[135] Second, the Jacobs TIA provides a limited assessment of the traffic impacts. Initially only three intersections external to the Land were examined, with two of them being access points from the proposal to Mount Peter Road. The intersections examined are the Mount Peter Road/Sandy Road/new road intersection being the northern access to the Land, the Mount Peter Road/Mohammed Access intersection, and the Mount Peter Road/Greypeaks Drive/un-named Road intersection north of the Land (the Pinecrest access). These 3 intersections are those where the Edenbrook development and the Pinecrest Estate 'plug into' the existing and anticipated trunk transport network. Having analysed these 3 intersections, the Jacobs TIA then relies upon the LGIP transport infrastructure as being adequate to service the development, rather than analysing the broader network.

[136] Third, no Council controlled road segments or intersections north of Greypeaks Drive, or south of Mohammed Access were assessed. No assessment has been undertaken of road sections between the Land and the Bruce Highway via Mount Peter Road, via Peterson Road (to the north) or via Maitland Road (to the south). In response to the State Assessment and Referral Agency (SARA)'s Information Request, the Bruce Highway/Mill Road/Thomson Road intersection in Edmonton was analysed. That the limited analysis in the Jacob TIA is inadequate to establish the impact of the proposal on the transport network is demonstrated by the analysis responsive to SARA's information request and SARA's referral agency response imposing a condition requiring road works for additional lanes to be provided at the newly analysed intersection.[89] This condition is not challenged by the Appellants. The connectivity of this community to the Bruce Highway has not been considered, except at the single intersection.

[137] Exhibit 19A does not address the deficiencies in the Jacobs TIA as:

(a) it relies upon assumptions made about the number of dwellings per annum delivered by the Pinecrest Estate approval, which is not correct. Mr Pekol accepted that this change would have a meaningful effect on the analysis;[90] and

(b) does not account for approvals granted after the Jacobs TIA was prepared; and

(c) makes no allowance for visitor traffic associated with the future local centre or the District Sports Park.[91]

[138] The Appellants rely upon the cross-sections in Exhibit 37 to establish that the Mount Peter Road reserve adjacent to the Land and north of the Land adjacent to Lot 1 can physically accommodate:

(a) the requisite transport infrastructure within the existing road reserve on an interim basis; and

(b) the applicable types of roads, as determined by reference to the Far North Queensland Regional Organisation of Council Development Manual (FNQROC Development Manual), assuming dedications or resumptions of Lot 1 and the Land.

[139] These cross-sections adopt the FNQROC Development Manual standard drawings[92] for the road type proposed in the LGIP. The FNQROC Development Manual also includes drawings demonstrating the accommodation of public utilities such as water, telecommunications, gas, power, and street lighting in the road verges. There is no specific alignment for wastewater provided in the FNQROC Development Manual.

[140] North of the Land, the road reserve adjoining Lot 1 is not sufficient to accommodate the trunk roadworks. The LGIP proposes the upgrade of this section of road in 2036, at which time the Respondent would resume land to accommodate the works. In the event this upgrade is required prior to 2036, cross-section AA and BB in Ex. 37 depict an interim solution. By these cross sections the Appellants seek to demonstrate that if this development proceeds in the absence of the widening of the road reserve north by either dedication or resumption, interim measures enable this development to proceed. The Appellants do not contend this interim solution is required, but rather that it demonstrates flexibility if a future TIA determines the upgrade is required in advance of 2036. This interim solution could be redesigned to accommodate to 2.5m shared pedestrian/cycle path. The Appellants contend that, except for the 450m of pedestrian and cycle path adjacent to Lot 1, the interim two-lane solution with associated footpaths and cycle paths would not involve costs thrown away because the works would comprise part of the ultimate infrastructure.

[141] I am not persuaded that the interim solutions do not involve costs 'thrown away' (in addition to costs thrown away associated with the combined cycle/pedestrian path), because the design of the interim solutions is incomplete. The design does not include the redesigned combined cycle/pedestrian path, the kerb-and-channel on the eastern alignment north of the Land, and the interim drain. However, I proceed on the basis that the costs associated with the inefficiencies of the provision of interim infrastructure, including the costs of the provisions of this interim infrastructure and the costs of the later upgrade to the final design, can be conditioned to be borne by the Appellants.

[142] It has not been demonstrated that the requisite infrastructure can be accommodated in the road reserve for the following reasons.

[143] First, in the absence of analysis of the network, including safe provision for cyclists and pedestrians, the nature and extent of the requisite transport infrastructure for the proposal has not been identified.

[144] Second, the infrastructure has not been designed. In addition to the transport infrastructure to be identified and designed, an open swale drain is proposed adjacent to Mount Peter Road, north of Sandy Creek, as an interim measure.[93] The size of this drain has not been ascertained and accordingly the drain has not been designed.[94]

[145] Third, drawings of the ultimate cross-sections for the length of Mount Peter Road have not been prepared and consideration has not been given to the factual setting of the particular road.[95] In the vicinity of the Land, the proposed and anticipated non-traffic trunk infrastructure upgrades can theoretically be accommodated within the road reserves and dedications adjoining the Land in the long term as this provides adequate width to accommodate the LGIP proposed road infrastructure designed consistently with the FNQROC Development Manual. However, this approach fails to consider the particular road. Consideration of the individual circumstances of the roads in question will identify whether there are factors, such as safety concerns or design issues, that may necessitate the upgrade of a section of road infrastructure even though the traffic volumes alone may be acceptable.[96]

"In this instance, Mount Peter Road is pinned against the - um - can (sic) rail line, which is in freehold land. It's not road reserve. So council or road authorities don't have any ability to widen that way or to take the land, so we've got to get the definition of the ultimate corridor - not - not 10, 20 years' time, but the ultimate full build out amount of Mount Peter corridor. We've got to size that right. So in terms of, you know - um - can they - can they fit a two-lane sub-arterial median divided? Generally - yes. Although this is only a cross-section and, of course, the road has to be designed for its horizontal alignment and that may mean in parks, around corners and that - bridge approaches, those kinds of things - you might need to widen the road reserve beyond the minimum. Um - and that's the kind of preliminary design work that you would normally do to determine that road reserve and, then, make sure that it's protected by development. Because once you put development against it - um - if you get it wrong, you run the risk that you're knocking on the door of people's houses - um - 25 years down the track and saying, "We need to take three metres off your back yard" or "We need to take the garden shed cause we don't have enough room in our road reserve". So this - good planning is to start with the big picture and work down. This - we're kinda playing around in the middle space rather than starting at the end game and then working backwards."[97]

[147] Mr Douglas accepted that the internal issues of concern could ultimately be resolved but may require redesign.[98] For this precisely designed reconfiguration these issues should be resolved prior to the granting of the preliminary approval, as any necessary redesign may have flow on effects. For example, an acoustic fence is proposed on the boundary of the Land fronting Mount Peter Road and Mohammed Access. To accommodate pedestrians and cyclists, access gaps will be required in this fence. To maintain the acoustic and light attenuation qualities of the fence in the vicinity of the intersection may require redesign. If the redesign requires relocation of the adjacent internal road this will logically have impacts on the layout of proposed developable lots, the intersection, and the cane rail network. The Appellants propose such issues will be identified when the development application for the adjacent stage is made. However, if prior adjoining stages have been approved and developed, it is unclear how any redesign would then be accommodated.

[148] In the absence of a TIA for the proposal, the Appellants have not established that the existing transport network can accommodate the proposal until upgrades occur.

[149] This proposal introduces more than 500 residential lots of a specific design into an area which is presently rural but intended for residential use. While it is proposed that each subsequent reconfiguration of a lot will require a TIA for that proposal, no TIA has been undertaken for the whole of the development. Nor have the particular circumstances of the roads in question been considered. Placing this number of residential lots in this location will have impacts on the transport infrastructure network of the locality. These impacts have not been considered. The limited analysis of the impacts of the proposal beyond the boundaries of the Land mean the efficiency and adequacy of the transport network have not been considered. This is particularly important as the area in which the works can be undertaken is constrained by the location of the cane rail. On the evidence, it is not possible to determine the impacts of the proposed development on the road network, the transport infrastructure required to support this significant residential development, the design of the infrastructure, whether it can be accommodated in the road reserve, and the requisite timing of the provision of that infrastructure. I accept Mr Douglas's evidence that in the absence of a TIA of the proposal it is difficult to determine and assess the full extent of likely impacts on the road network and the delivery of LGIP transport infrastructure.

[150] The Appellants' approach is that a preliminary approval is sought, and so detailed design can be left until later applications. This approach does not establish how traffic assessments of the various stages of the proposal will ensure transport infrastructure is provided to adequately mitigate the cumulative impacts of the proposed development nor how it will be integrated with the existing and future infrastruture. Such an approach is not consistent with the integrated and efficient delivery of transport infrastructure. It means that the Court cannot be satisfied that the transport network will be functional and safe.

[151] The Land is currently isolated from educational, retail and community facilities. While some such facilities are located in the Mount Peter area, the first residents in Edenbrook will be car dependent, until supporting facilities develop nearby. Active transport network users in this out of sequence development will not have safe and integrated access to facilities in the immediate locality. This failure to connect extends more broadly to Gordonvale, Edmonton, and the Bruce Highway. Limited consideration has been given to transport "connectivity to the Bruce Highway" with only one intersection assessed. This may compromise the Respondent's future planning. Accordingly, the proposal is contrary to OO2(d) of the Reconfiguring a lot code and OO2(o) of the Mount Peter local plan code.

[152] The development does not "contribute to a safe and efficient transport network" that "supports the existing and future role and function of the transport network". I am not persuaded that it "does not compromise the safety and efficiency of major transport infrastructure" or "supports the road hierarchy for the region". This is because:

(a) only limited transport infrastructure has been assessed;

(b) the road and pathway works required to service the development have not been identified;

(c) whether the requisite traffic and other infrastructure works can be accommodated within the existing road reserves or land under the control of the Appellants is not adequately demonstrated by the cross-sections as the design and extent of the works has not been identified; and

(d) it is not possible to ascertain, in the absence of this analysis, whether conditions could be imposed to achieve compliance.

[153] As the particular circumstances of the roads in question have not been considered, I am not persuaded that the proposal achieves an "integrated approach" to the development of this new community. Accordingly, the Purpose and OO2(i) of the Mount Peter local plan code is not satisfied.

[154] The failure to establish that the development contributes to a safe and efficient transport network cannot be remedied by the imposition of conditions. A TIA of the proposal is required to establish the traffic impacts on the network and the transport infrastructure requirements of the proposal before it can be established whether the requisite infrastructure can be provided in a manner to ensure it contributes to a safe and efficient network. In the absence of an assessment, and without knowing the nature and design of the requisite infrastructure, the Court cannot be satisfied that the traffic issues can be resolved in a manner that ensures the delivery of a functional, safe, and efficient road network. In these circumstances compliance with the assessment benchmarks cannot be achieved by the imposition of conditions requiring payment for the provision of transport infrastructure.

[155] For these reasons, the proposal does not meet:

(a) SPP - State interest - Transport infrastructure 2 and 3;

(b) Transport network overlay code OO2(b), OO2(c), OO2(d), PO1, AO1.1, AO1.2, AO1.3, PO2, AO2.1, PO4, AO4.1, AO4.2, AO4.4, PO6 and AO6.1;

(c) Infrastructure works code Purpose, OO2(a), OO2(d), PO1, PO8, AO8.1, PO12, AO12.1, AO12.2 and PO13; and

(d) Reconfiguring a lot code OO2(i) PO5, PO15, AO15.1, PO26 and PO27.

[156] I am satisfied that AO1.1 and AO1.2 of the Infrastructure works code are met. While the interim and ultimate traffic arrangements are uncertain, the cane rail remains a constraint. I accept Mr Pekol's evidence that adopting standard rail crossing treatments, a solution that would protect the cane rail network and support the agricultural industry can be found, and that this solution can be implemented so as to minimise impacts on the cane rail network (having regard to the limited time each year the spur line is used). Accordingly, PO10 of the Reconfiguring a lot code can be met.

[157] The Respondent says the proposed development does not comply with, or it has not been demonstrated that the proposed development can comply with (even with the imposition of lawful conditions) the following assessment benchmarks with respect to subdivision layout and design:

(a) Mount Peter local plan code: Overall outcome 2(i);

(b) Low-medium Density Residential Zone Code: Overall Outcome (2)(e) and PO6; and

(c) Reconfiguring a lot code: Performance outcomes PO14(a), (d) and (e), PO15, Acceptable Outcome AO15.1.

[158] Having regard to my findings at [89], [115] and [151] I am not satisfied that the development establishes a structure that integrates with existing urban areas, provides an interconnected transport network connecting the community with activity centres and employment areas, or provides a network of essential water and wastewater infrastructure. For these reasons, PO14(a), (d) and (e) of the Reconfiguring a lot code are not met. The remainder of the provisions in issue with respect to this issue are dealt with elsewhere in these reasons.

[159] The Respondent submits that the proposed development does not comply with, or it has not been demonstrated that it can comply with (even with the imposition of lawful conditions) the following assessment benchmarks relevant to matters of terrestrial ecology:

(a) SPP: State interest - Biodiversity (1), (2) and (3);

(b) Natural areas overlay code: Purpose 8.2.11.2(1)(a), (b), (c), and (d), Overall outcomes 8.2.11.2(2)(a), (b)(i) to (ix), Performance outcomes PO1(c) and (d), PO4, AO4.1, AO4.2, PO5, PO10(b) and (c), AO10.1, AO10.2 and AO10.3;

(c) Mount Peter local plan code: Overall outcome 7.2.7.3(2)(i), and Performance outcome PO1(i), Acceptable Outcome AO1.1;

(d) Low-Medium density residential zone code: Overall outcome 6.2.10.2(2)(e) and Performance outcome PO6;

(e) Infrastructure works code: Overall outcomes 9.3.5.2(2)(b), (c) and (e) and Performance outcome PO10, PO17, Acceptable outcomes AO10.1, AO10.2, AO10.3, AO17.1, AO17.2; and

(f) Reconfiguring a lot code: Overall outcomes 9.3.8.2(2), (f) and Performance outcome PO3, Acceptable Outcome AO3.1.

[160] Mr Clowes, for the Respondent, and Mr Moffitt, for the Appellants, gave evidence about terrestrial ecology. They agreed:

(a) the riparian/waterway corridors have ecological value (although they disagreed on the magnitude of those values and the extent to which they constrain development);

(b) the riparian/waterway corridors should be conserved in public ownership; and

(c) the buffers to the rainforest community/waterway should be enlarged.

(a) the weight to be given to decisions about other development applications within the Mount Peter local plan area;

(b) the significance of the direct and indirect impacts;

(c) the width of the buffer needed and its treatment; and

(d) the need for an additional buffer edge for foraging species.

[162] These matters of agreement and disagreement were reached prior to the minor change to the application. As a result of the minor change, the proposal includes expanded buffers and an increase in revegetation. Ultimately, however, Mr Clowes' concerns remain relevant.

(a) both Sandy Creek and Grays Creek are matters of local environmental significance and are considered wildlife habitat for endangered and vulnerable species;

(b) the creek vegetation community is largely comprised of a single vegetation community described as Simple-complex, semi-deciduous, notophyll to mesophyll vine forest on lowland alluvium (NMVF);

(c) the Land includes endemic species and their habitat, endangered regional ecosystems, and endangered threatened ecological communities;

(d) the riparian vegetation adjacent to Sandy Creek and Grays Creek and their tributaries is a MNES;

(e) vegetation on the Land meets the criteria listed for Lowland tropical rainforests of the Wet Tropics threatened ecological community. The conservation status of that threatened ecological community is "endangered", the second highest conservation status for ecological communities in Australia. Notably, this status is reserved for ecological communities which are facing a very high risk of extinction in the wild in the near future, being 20 years;

(f) the Land supports the following matters of local, state and national environmental significance:

1. Natural areas overlay - MLES (Waterway trigger) - Urban waterway A trigger area
2. Natural areas overlay - MSES (Habitat) - Regulated vegetation (essential habitat)
3. Natural areas overlay - MSES (Vegetation) - Regulated vegetation) - (intersecting a watercourse)
4. Natural areas overlay - MSS (Vegetation) - Regulated vegetation (category C)
5. Natural areas overlay - MSES (Vegetation) - Regulated vegetation (category R)
6. Natural areas overlay - MSES (Wildlife habitat) - Endangered or vulnerable

1. MSES - Wildlife habitat (endangered or vulnerable)

i. Cyclopsitta diophthalma macleayana (Macleay's Fig-parrot) (Vulnerable)

ii. Hipposideros didema reginae (Diadem Leaf-nosed Bat (Near threatened

iii. Casuarius casuarius johnsonii (Cassowary) (Endangered) (potential habitat)

iv. Pteropus conspiccilatus (Spectacled Flying- fox) (Endangered) (potential habitat)

1. MSES - Wildlife habitat (special least concern)
2. MSES - Regulated vegetation Category B
3. MSES - Regulated vegetation Category C
4. MSES - Regulated vegetation Category R
5. MSES - Regulated vegetation - essential habitat

1. MSES - Regulated vegetation - intersecting a watercourse

1. Confirmed Threatened Ecological Community (EPBAC Act listed status):

a. Lowland tropical rainforest of the Wet Tropics (REW 7.3.23a) (endangered - Class A (large patch and high condition)

1. Confirmed threatened or migratory Fauna (status):

a. Rhinolophus roertsi (Large-eared Horseshow Bat) (Vulnerable)

c. Merops ornatus (Rainbow Bee-eater) (Migratory)

a. Casuarius casuarius johnsonii (Cassowary) (Endangered)

b. Pteropus conspicilltus (Spectacled Flying- fox) (Endangered)

[164] The ecological values of the Land are restricted to the riparian zone of Sandy Creek and Grays Creek. The Land has high species richness.[99] It supports habitats for a range of national threatened fauna species including migratory species. The habitat essential for the threatened species' existence is largely restricted to the remaining areas of NMVF adjacent to Sandy Creek and Grays Creek and their tributaries.

[165] Conservatively, 0.18 ha of vegetation is proposed to be cleared. Putting to one side the revegetation of the basins, 11.15ha of land is to be revegetated. The timing of the revegetation is tied to the timing of various stages of the development. Mr Moffitt agreed that the revegetation should be brought forward, including the revegetation of Lot 995 located between Sandy Creek and the unnamed gully to the north. To ensure that the revegetation contributes to the minimisation of edge effects from adjoining development it should occur before the relevant stage.

[166] The current use of the Land is an important consideration. Cattle use the riparian zone, damaging the ground beneath the canopy and at watering points on Sandy Creek, and causing erosion. Fencing in the creeks hinders fauna movement and poses risk of entanglement. Waste has been dumped in the gullies. The cessation of the use of the Land for agriculture and the removal of this waste will benefit the local ecology. Mr Moffitt agreed that fencing the creeks, removal of existing debris, removal of cattle, weeding, and provision of infill planting in the existing vegetation to stop the existing degrading processes should be tied to Stage 1. These matters and the method of revegetation can be the subject of conditions.

[167] It is an important matter of context to consider CairnsPlan's treatment of the Land. By the Land's inclusion in the Urban area, the Medium density residential zone and within Precinct 2 of the Mount Peter local plan code, it is clear that the Land is intended for residential use. However, these are not the only factors relevant to the assessment. Overall outcome 2(e) of the Low-medium density residential zone code requires that "development reflects and responds to the natural features and constraints of the land."[100] The Natural areas overlay code prevails over the Low-medium density residential zone code in the event of any inconsistency. The Natural areas overlay code OO2(a) requires development to be located to "avoid adverse impacts on areas of environmental significance."[101] The CairnsPlan provides "Where development is proposed on premises partly affected by an overlay, the category of development and assessment for the overlay only relates only to the part of the premises affected by the overlay".[102] Thus, the overlay code applies only to the land affected by the overlay map. The Natural area overlay maps the riparian parts of the Land and so applies only to those parts of the Land. That only the riparian areas of the Land are affected by the overlay is consistent with the evidence of the terrestrial and aquatic ecologists and is reflected in the past and present use of the balance of the Land for agricultural purposes.

[168] Mr Clowes observes that the ecological survey effort is likely to have been inadequate because the report which accompanied the development application to the Respondent includes the disclaimer:

"it is highly unlikely that all higher taxa fauna was recorded during the survey effort, however it is probable that most have been recorded outside fish and insect species."[103]

I consider that this is a relatively standard disclaimer that would apply to most, if not all fauna surveys, undertaken. This is not the only data relied upon by the experts. In addition to the ecological survey and assessment reports which supported the development application, and relevant government and environmental databases, Mr Moffitt undertook daytime and twilight site inspections and relied upon a camera trap survey conducted over approximately 12 days in May 2025. Further, all the ecologists agreed that the areas of environmental significance are the riparian areas, as the balance of the Land has been cleared and is presently used for agricultural purposes. For these reasons, I am satisfied that the ecological survey effort is adequate.

[169] The amended plans comprising the minor change introduced new impacts associated with the stormwater detention basins. Mr Clowes expressed concerns about direct impacts associated with the clearing of native vegetation for construction and earthworks:

(a) due to the proximity of basins 1-3 to the edge of the threatened ecological rainforest community;

(b) for the outlets for the stormwater detention basins located within areas containing matters of environmental significance; and

(c) for the 'local park east' (Lot 998) which extends into threatened ecological rainforest community, and now also accommodates the pump station SPSF39.

[170] The adequacy of buffers and setbacks was also of concern to him.

[171] The Appellants submit that basins 1-3 can be redesigned so that the basins themselves are located outside the 10m setback and a condition imposed to mitigate the impacts of the construction of the detention basin outlets.[104] The adequacy of buffers is discussed below.

[172] The impacts of the development of the local park east are unclear. The construction technique proposed for SPSF39 has not been adequately addressed. There was no evidence about the design and construction of this item of infrastructure until Mr Hoban was asked, in re-examination, to design it. The aboveground infrastructure is modest.[105] The below ground infrastructure "typically" includes two underground chambers. The size of this infrastructure has not been determined.[106] However, I accept Dr Johnson's evidence that appropriate construction control measures are available to satisfactorily manage erosion and sediment impacts which will avoid or minimise construction related impacts on stormwater quality and that appropriate conditions can be imposed.[107]

[173] However, in the absence of a plan of the development footprint by reference to matters of environmental significance and the construction methodology for this infrastructure, the ecological impacts of clearing for earthworks and construction of this infrastructure is unknown. I am not persuaded that development of the local park east which will extend into threatened ecological rainforest community, and the pump station SPSF39, will not cause unacceptable adverse impacts on the environment. Purpose 2(b) of the Excavation and filling code is not satisfied.

[174] Two threatened plant species were identified on the Land. I am satisfied that impacts upon these threatened plants can be adequately mitigated. Canarium acutifolium (vulnerable under the Environmental Protection and Biodiversity Conservation Act 1999 (Qld) (EPBC Act) and the Nature Conservation Act 1992 (Qld) (NC Act)) and Cheilocostus potierate (endangered under the NC Act) were threatened species. Canarium acutifolium was located on the edge of a track providing access between the cane and the steep bank of Grays Creek. It is located within the conservation area of the proposal. A condition can be imposed to ensure its protection. Cheilocostus potierate was located near the existing shed on the Land. Due to its setting, it was not subject to protection. The Land has recently been sprayed as part of its present use and the spray eradicated the specimen.

[175] The primary issue for the ecologists is the provision of adequate setbacks or buffers. Provisions of the Natural areas overlay code are relevant to a consideration of the setbacks or buffers appropriate for development adjoining waterways and waterway corridors.

[176] The Natural areas overlay code establishes that the "waterway" is the area between the high banks and the waterway corridor is a wider area.[108] Relevantly, the corridor width is "10m on each side of the waterway, measured perpendicular from the top of the high bank".[109] AO1.4 of the Natural areas overlay code provides that "development does not occur on the part of the lot affected by a waterway corridor". The corresponding Note refers to Figure 8.2.11.3.e for guidance on meeting AO1.4. The Figure confirms that a lot may be located within the "waterway corridor" but that built form on the lot is to be outside the corridor.

[177] Neither the development nor the waterway are contained within an easement, covenant, adjoining reserve for waterway purposes, or adjoining land under local government control that has a drainage function. The development is not located within a building envelope that applies to the land under a condition of a relevant approval and the development is not on a lot that is separated from the subject waterway by an existing constructed road with a dedicated road reserve. Accordingly, AO1.1, AO1.2 and AO1.3 of the Natural areas overlay code do not apply.

[178] It is not contentious that AO10.1 of the Natural areas overlay code requires 10m wide waterway corridors adjacent to the onsite waterways, nor that the proposal involves incursions into these 10m corridors. These incursions comprise stormwater outlet pipes, the trenching and underground drilling required to install these pipes, installation of the outlets from Basins 1-3 and Basins 4 and 5, and Basins 1-3 and the "bowl" on the southern side of Sandy Creek. The temporary pump station may also incur. The incursions by the basins and bowl total 125m². Clearing for the construction of the pipes is conservatively estimated at 400m².

[179] That Basins 1-3 can be redesigned, either moving the top of the batter or steepening the batters to move the incursion out of the 10m top of bank setback, was generally agreed by Mr Giles, Mr Bristow, Mr Hoban and Dr Johnson. I proceed on the basis that conditions can be imposed to mitigate the impacts of construction on the vegetation. The incursions of the pipes will not have a measurable impact on aquatic ecological values because conditions can be imposed to minimise the impacts of construction and for revegetation following construction. Revegetation will aid in the protection of the waterways.

[180] The Appellants' primary submission is that the impact is minimal - small areas are impacted, areas not now vegetated will be vegetated, and regrowth following construction will occur quickly, and this almost compliance with the acceptable outcomes is material.

[181] There is clearly non-compliance with AO1.4, AO10.1 and AO10.3 of the Natural areas overlay code. The Appellants must therefore demonstrate compliance with PO1 and PO10 of the Natural areas overlay code.

[182] Ms Thorborn considers the proposed buffers inadequate. In her opinion a buffer of at least 30m from the top of bank is required to adequately address the matters raised by PO1 and PO10.

[183] Dr Howell opined that the proposed setbacks in combination with the increased riparian vegetated buffers are sufficient to protect the aquatic ecosystems in the long term.[110] He considered this would bring about a net improvement in ecological values adjacent to and downstream of the Land when compared with the existing conditions.

[184] Mr Clowes considers the proposal provides insufficient buffers to matters of environmental significance and to protect and maintain ecological processes. He expressed concern that:

(a) the buffers proposed are highly unlikely to provide sufficient habitat to support the Agile Wallaby, the Diadem Leaf-nosed bat, and the Rainbow bee-eater; and

(b) the clearing proposed will impact the Land's role as a fauna refuge for the Macleay's Fig-parrot and the Spectacled Flying fox and its role in landscape connectivity.

[185] He proposes a 50m revegetated buffer around the outside edge of the NMVF threatened ecological community. This buffer is based on the Commonwealth's Conservation Advice associated with the administration of the EPBC Act, which is not an assessment benchmark. Nonetheless, Mr Clowes considers this buffer necessary to mitigate the impacts on the significant ecological values of the remaining area of native vegetation that is threatened ecological community. He also proposes additional areas of cleared open space to provide habitat for fauna, particularly the Agile wallaby. In considering the proposal prior to the minor change, Mr Moffitt was dismissive of what he described as Mr Clowes "excessive buffer requirements" but observed that it would be valuable to improve the buffer then proposed to achieve a more consistent setback from the high bank and a more consistent corridor width, which he considered the changed proposal achieved.

[186] Throughout the Terrestrial Ecologists' JER Mr Moffitt regularly refers to the proposed buffers to the riparian vegetation and the impact of the proposal on ecological values by reference to contemporaneous decisions made by the Respondent when considering other development approvals.[111] As there was no evidence before the Court about the ecological values of those other sites the comparison was of limited value. I prefer the evidence of Mr Clowes in determining the impact upon the terrestrial ecological values and appropriate buffers, because I consider Mr Moffitt gave undue weight to these other approvals.

[187] The appropriate buffer width will be site specific and must suitably protect and maintain the waterways and associated riparian vegetation from the potential impacts associated with residential land use. The setback distance is to be informed by the high conservation values of the relevant parts of the Land including MLES, MSES and MNES and the connectivity value of the Land within the wider landscape. Connectivity is important in this highly fragmented landscape, due to the narrow banks of lowland rainforest. Having regard to the relevant matters of environmental significance, the ecological values of the Land are significant and worthy of protection and management.

[188] The cessation of the use of the Land for agricultural purposes and revegetation of an area of approximately 15.03 ha currently cleared (although revegetation of the various basins comprising 3.88 ha will be more limited than the balance of the revegetation) are beneficial. Revegetation of the riparian areas will consolidate and expand the riparian zones sought to be protected, providing additional habitat for fauna species and reducing the severity of the edge effects. This will benefit fauna using the riparian zones for foraging or habitat opportunities and increase the robustness of the forest edge habitat for the Rainbow bee-eater and the Agile wallaby. The grassy margins of the proposed linear parks will provide edge habitat for the Agile wallaby, a common species. A condition can be imposed requiring that forest edge planting include sclerophyll species that provide future habitat hollows for the Diadem Leaf-nosed bat, to support the continuation of the species on the Land. Esplanade features, such as roads, are an accepted means of reducing urban-induced edge effects. It is identified as an acceptable outcome for buffering Urban Waterway A trigger areas under the CairnsPlan. The vegetated detention basins will form part of the interface to create a "soft urban edge".

[189] Cessation of the use of the Land for agricultural purposes and the proposed revegetation will encourage the expansion of habitat and ecological connectivity, facilitating restoration of terrestrial and aquatic ecosystems, in compliance with Purpose 1(d) of the Natural areas overlay code.

[190] However, roads, developable lots, linear parks, and the temporary pump station (and later pump station SPSF39) are located within the area mapped MSES Regulated Vegetation (category R). That there is development in areas of environmental significance is contrary to Purpose 1(a) and OO2(a) of the Natural areas overlay code.

[191] There is significant incursion of development comprising roads, pathways and developable lots within each of the 50m buffer areas.[112] Due to these significant incursions into the 50m buffer, I am not satisfied that the buffers proposed are adequate to mitigate the direct and indirect terrestrial ecology impacts of the development on the endangered regional ecosystem and features of environmental significance. This means that high environmental standards are not achieved. More significant buffers than proposed are required to "protect and maintain" the ecological processes and biodiversity values. For these reasons PO1 and PO10(c) of the Natural areas overlay code are not met.

[192] The proposal does not "reflect and respond to the natural features and constraints" of the Land. Compliance cannot be achieved by the imposition of conditions. A condition requiring a 50m buffer would necessitate redesigning the proposal to remove the incursions. It is not simply a case of removing developable lots. Removal of infrastructure including roads and pathways is also required. This may necessitate redesign of other aspects of the proposal. The Appellants seeks approval of the proposal in the plans. The Court is tasked with assessing the proposal, not redesigning the proposal.

[193] For the reasons above, the proposal as it relates to terrestrial ecology does not comply with:

(a) SPP: State Interest - biodiversity 1, 2 and 3;

(b) Purpose 1(b), OO2(b), PO1(d), PO4 and the corresponding AO of the Natural areas overlay code;

(c) OO2(i) of the Mount Peter Local Plan Code;

(d) OO2(e) and PO6 of the Low-medium density residential zone code;

(e) OO2(b), OO2(c), OO2(e), PO17 and AO17.1 of the Infrastructure works code; and

(f) OO2(f), PO3 and AO3.1 of the Reconfiguring a lot code.

[194] The proposal can be conditioned to comply with AO17.2 of the Infrastructure works code.

[195] As to matters of aquatic ecology, the Respondent submits that the proposed development does not comply with, or it has not been demonstrated that it can comply with (even with the imposition of lawful conditions) the following assessment benchmarks:

(a) SPP: State interest - biodiversity (1), (2), (3) and State interest - water quality (3)(a) and (d) and (5);

(b) Natural areas overlay code: Purpose 8.2.11.2(1)(a), (b), (c), and (d), Overall outcomes 8.2.11.2(2)(a), (b)(i) to (ix), Performance outcomes PO1, PO4, PO5, PO10, Acceptable Outcomes AO1.1, AO1.2, AO1.3, AO1.4, AO4.1, AO4.2, AO10.1, AO10.2, AO10.3;

(c) Mount Peter local plan code: Overall outcome 7.2.7.3(2)(i), and Performance outcome PO1, Acceptable Outcome AO1.1;

(d) Low-medium density residential code: Overall outcome 6.2.10.2(2)(e), and Performance outcome PO6;

(e) Environmental performance code: Overall outcomes 9.3.2.2(2)(d), Performance outcome PO9, Acceptable Outcomes AO9.1, AO9.2, AO9.3, AO9.4;

(f) Infrastructure works code: Overall outcomes 9.3.5.2(2)(b), (c) and (e), and Performance outcome PO10, and Acceptable Outcomes AO10.1, AO10.2, AO10.3; and

(g) Reconfiguring a lot code: Overall outcomes 9.3.8.2(2)(b) and (f), and Performance outcome PO3, Acceptable Outcome AO3.1.

[196] The Court had the benefit of evidence from Dr Howell for the Appellants and Ms Thorburn, for the Respondent to address matters of aquatic ecology.

[197] As a result of past and current agricultural activities on the Land, the ecological attributes which remain are essentially limited to the vegetated waterway corridors. Waterways on the Land are:

(a) Sandy Creek and two of its tributaries in the middle and northern parts of the land; and

(b) Grays Creek, which flows into Wrights Creek in a south-eastern corner of the Land.

[198] The Sandy Creek tributaries are unmapped, but the aquatic ecologists consider they are likely to be defined as "drainage feature" under the Water Act. Sandy Creek enters Wrights Creek 1.1km downstream from the boundary of the Land. Wrights Creek becomes part of the Great Barrier Reef Coast Marine Park (Estuarine conservation zone) approximately 10km downstream from the Land and enters Trinity Inlet approximately 16km downstream of the Land. Trinity Inlet is a fish habitat area and part of the Great Barrier Reef World Heritage Area and discharges to the Coral Sea at Cairns.

[199] The aquatic ecology experts agreed the following environmental designations and values are relevant to the consideration of aquatic ecology:[113]

(a) Matters of National Environmental Significance (MNES) including:

(i) the Great Barrier Reef World Heritage Area - within the receiving environment for the site (approximately 16 km downstream);

(ii) potential for threatened and/or migratory aquatic species to occur in the waterways of and downstream of the site including the Cairns rainbowfish (endangered), opal cling goby (critically endangered), freshwater sawfish (vulnerable and migratory), green sawfish (vulnerable and migratory), water mouse (vulnerable) and the estuarine crocodile (migratory); and

(iii) the Wet Tropics Threatened Ecological Community (TEC).

(b) Matters of State Environmental Significance (MSES) including:

(i) MSES waterways which provide for fish passage. Notably, Sandy Creek and Grays Creek are mapped as "moderate risk of impact" and Wrights Creek is mapped as "major risk of impact";

(ii) MSES Regulated Vegetation (various categories) in the riparian zones of the waterways on the Land;

(iii) MSES wildlife habitat in the riparian zones of the waterways on the site. Notably, the estuarine crocodile is listed as "vulnerable" under the Nature Conservation Act 1992 and Wrights Creek provides potential habitat for this species; and

(iv) MSES declared fish habitat area.

(c) Matters of Local Environmental Significance (MLES) including:

(i) Natural areas overlay - MSES Urban Waterway A trigger area; and

(ii) MSES Regulated Vegetation (various categories) and Wildlife Habitat in the riparian zones of the waterways on the Land.

(d) the waterways and associated riparian vegetation on the Land are mapped as:[114]

(i) Riverine Wetland Lines and Areas on the Queensland Wetlands Program mapping; and

(ii) High Potential Aquatic GDE on the Bureau of Meteorology GDE Atlas.

(e) Sandy Creek, Grays Creek and Wrights Creek are each classified as being "high conservation" value under the State Aquatic Conservation Assessments."[115]

(a) the condition of the waterways across the Land was variable and impacted by historic and agricultural use;

(b) having regard to the water experts' evidence, the proposed stormwater treatment will likely be suitable to protect aquatic ecosystems in the receiving environment, including waterways immediately adjacent and downstream as well as the sensitive receptors in the receiving environment;[116]

(c) Sandy and Wrights Creeks contain shallow pools and baseflows from groundwater that are at least semi-permanent, and are appropriately characterised as GDE;

(d) sections of the waterways support a moderate diversity of aquatic species including macroinvertebrates, fish and reptiles that are common to the region;

(e) the estuarine crocodile, protected as a migratory species, may occur in Wrights Creek. No other Endangered, Vulnerable and Near Threatened aquatic species are expected to occur on the Land.[117]

[201] I am satisfied that Purpose 1(c) of the Natural areas overlay code is satisfied.

[202] The remaining issues relevant to aquatic ecology are:

(a) that it is not demonstrated that the proposed development would not give rise to unacceptable groundwater impacts; and

(b) the impacts of the proposed stormwater outlet systems associated with Basins 1-3 and Basins 6 and 7.

[203] Ms Thorburn's concern is that in the absence of modelling to assess the impacts of the proposed development to the groundwater regime, there is uncertainty about the potential impacts to the waterways and riparian vegetation which are both matters of environmental significance and GDEs. Having regard to the matters contained at [220] and [221], I am comfortably satisfied that the proposal will give rise to unacceptable groundwater impacts.

[204] The experts agreed that the outlet arrangements should be remodelled to confirm the ultimate design does not result in an increase in the peak flow discharged from the Land for events up to and including the 1% annual exceedance probability events. A condition to this effect can be imposed.

[205] The Respondent submits that the construction of proposed stormwater outlet systems, especially from Basins 1-3 and Basins 6 and 7, will give rise to unacceptable impacts. The outlets must be installed at around the bed levels of the creek system to manage erosion.[118] Mr Hoban opined that most of the basin outlet pipes can be installed using open trenching in cleared areas. He proposes a trenchless construction technique involving directional drilling construction technique to minimise the risks of damage to the vegetated bank of Grays Creek for the outlet for Basins 6 and 7.[119] For Basins 1-3, Mr Hoban proposes a trench shoring box to minimise the impacts of the establishment of stormwater outlets from that basin.

[206] Clearing will be required for the construction of the outlets. Mr Hoban and Dr Johnson agreed that less than 400m² would be required to be cleared for all the stormwater outlets. Mr Hoban considered that this was a highly conservative estimate and that as much existing vegetation as possible would be sought to be retained as trees have a key role in holding the soil together and work with rocks to provide erosion control.

[207] Dr Johnson and Mr Hoban accepted that these construction methods were achievable and acceptable from engineering point of view. Accordingly, the remaining issues arising from the establishment of the stormwater outlets are the impacts on existing vegetation and are matters of ecology.

[208] Ms Thorburn's concern was the effect that boring a tunnel would have on the root system of vegetation had not been investigated, and that this boring may impact bank stability. There is no disturbance plan for the construction of the stormwater outlets. No cut and fill plan has been provided.

"For any operational works application for civil works in relation to the construction of Basin 6 and 7, prepare and implement a construction management program that includes the requirements set out in Part D of the Individual Report by Alan Hoban 31 July 2025, in order to prescribe measures to ensure that works do not impact upon riparian vegetation and impacts on creek flow."[120]

[210] A similar condition referring to the particular construction technique proposed could be imposed with respect to the construction of Basins 1-3.

[211] I am satisfied that the proposed methods of construction of these outlets and basins will minimise disturbance of the creek bed and the riparian zone. While I accept that the construction methods are not without risk of environmental impact, I am satisfied that appropriate conditions can be imposed to minimise this risk. Conditions can be imposed requiring the preparation of plans addressing the extent of disturbance, cut and fill, and tree retention. Revegetation is proposed. The species, extent and timing of this revegetation, and the removal of existing weeds which have invaded can be the subject of appropriate conditions.

[212] For the reasons at [172], [204] to [211] and [221], I am satisfied that conditions can be imposed on the construction of the stormwater discharge infrastructure to mitigate the risks. I am comfortably satisfied that the proposal complies (with the imposition of conditions) with:

(a) SPP State Interest - water quality 3(a) and (d) and 5;

(b) Natural areas overlay code PO5; and

(c) Environmental performance code OO2(d).

[213] As to the matters of stormwater and groundwater, the Respondent says the proposed development does not comply with, or it has not been demonstrated that the proposed development can comply with (even with the imposition of lawful conditions) the following assessment benchmarks:

(a) Environmental performance code: Overall outcome 9.3.2.2(2)(d), Performance outcome PO9, Acceptable Outcome AO9.1, AO9.2, AO9.3, AO9.4;[121]

(b) Excavation and filling code: Overall outcomes 9.3.3.2(2)(b), Performance outcome PO7, Acceptable Outcome AO7.1.

[214] There was consensus between Dr Johnson, for the Respondent, and Mr Bristow (stormwater quality and groundwater) and Mr Giles (stormwater quantity) for the Appellants that:

(a) the numerical modelling undertaken to assess the development impacts on surface water flows, groundwater recharge volume, water quality and stormwater flows is appropriate and sufficient;[122]

(b) the overall layout of the stormwater system with multiple points of release is appropriate for the Land given its lack of grade;[123]

(c) the locations for the points of release for stormwater into the creek lines would meet the normal definition of the lawful point of discharge, [124] provided the releases do not result in worsening, nuisance, or damage. Mr Bristow defers to Dr Johnson and Mr Giles for this assessment;

(d) the detention basins are suitably sized so as to ensure no unacceptable adverse hydraulic impacts on either creek system.[125] However, Dr Johnson considers there is likely to be significant vegetation disturbance in creating the outlets from each basin, and the effect of this disturbance has not been sufficiently considered or quantified in his opinion;

(e) suitable and appropriate construction control measures would be available to the Appellants to satisfactorily manage erosion and sediment impacts during construction and post-construction stormwater quality targets will be met;[126]

(f) the change of use of the Land from agriculture to an urban use will likely result in better water quality outcomes;[127]

(g) the recharge system will return the same volume of seepage to groundwater as occurs for the Land in its undeveloped state. However, Dr Johnson is concerned that there will be a change to the distribution of this seepage. At present, seepage occurs relatively uniformly across the Land with a general raising of the water table level. The proposed detention basins will focus discharge in discrete locations. This will result in a substantially lesser volume of water in the existing aquifer with resultant impacts on maintenance of base flows in dry conditions;[128]

(h) there will be no increase to the peak flow discharged from the Land compared to the existing situation[129] and the linear spreaders should not result in stream scour of the bed or banks of the creek system; and

(i) suitable and appropriate construction control measures would be available to satisfactorily manage erosion and sediment impacts.[130]

[215] The Appellants agree that the agreed conditions recommended by the hydraulic experts should be included as conditions of any approval. I proceed on that basis.

[216] The remaining strategic water and groundwater issues for consideration are:

(a) recharge of the aquifer; and

(b) water quality.

[217] The proposal will not meet the water quality objectives applicable to Sandy, Grays, and Wrights Creeks. Dr Johnson agreed that the developed Land is likely to have better water quality outcomes that the existing use.[131] Nonetheless this causes non-compliance with PO9 of the Environmental performance code and AO10 of the Infrastructure works code. No development on the Land can comply with these assessment benchmarks due to the local geology and the existing water quality conditions of the creeks from agricultural use. The proposal will achieve compliance with the relevant contamination removal efficiencies required by the CairnsPlan and so the quality of the water leaving the Land will be adequately ameliorated. The proposal complies with the SPP State interest - water quality provisions. In the circumstances, the technical non-compliance with PO9 of the Environmental performance code and AO10 of the Infrastructure works code is not material. There is no stormwater management plan and erosion control plan for the proposal before the Court. However, having regard to the matters of agreement at [214], I am satisfied that conditions can be imposed requiring the preparation of plans to achieve compliance with AO9.1, AO9.2, AO9.3 and AO9.4 of the Environmental performance code and AO10.1, AO10.2 and AO10.3 of the Infrastructure works code.

[218] Dr Johnson considers there has been insufficient analysis of the actual onsite aquifer system. He accepts that the use of "leaky" detention basins will ensure that groundwater recharge volume is equivalent to the predevelopment case. His remaining groundwater quantity concern arises from localised groundwater mounding: that there may be less water potentially available to maintain the creek during the dry period.[132] If the creek is not maintained in the dry period this may have implications for the GDE.

[219] This issue arises because the water table has a high point towards the centre of the Land. At present, infiltration occurs across the Land so there is a diffuse flow to the aquifer. The proposed development will result in localised groundwater mounding, increasing the flow to the creek systems because of the increased hydraulic gradient. Post-development, the overwhelming majority of groundwater recharge will be through the detention basins adjacent to the creeks. This will result in increased flows to the creek systems immediately after rainfall and decreased flows to the creeks in later times (the dry season). The volume of water may be similar to the pre-development scenario, but the distribution of the seepage will differ. Thus, the Respondent says, it has not been demonstrated that the development would not result in adverse impacts on the rate of groundwater discharge from the Land during the dry season. Modelling could be undertaken to confirm this.

[220] Dr Johnson accepts that Mr Bristow's thesis that the groundwater level would also be fed by infiltration was likely to be true.[133] The volume of recharge contributed by the Land is very small. Most recharge occurs during the wet season. The reports opined that groundwater is likely moving in an easterly direction, and locally, south easterly, based on the topography geology and groundwater levels recorded.[134] During the dry season, groundwater delivered to the on-site watercourses will come from upstream groundwater flows to the west. In the circumstances, I am satisfied that this redistribution of seepage will not have adverse impacts on the rate of groundwater discharge from the Land during the dry season.

[221] The volume of seepage to groundwater is unchanged, and the groundwater recharge can be balanced locally under the Land.[135] On the evidence, the development is located, designed, constructed, and managed to minimise impacts arising from altered stormwater quality or flow and can be conditioned to comply with PO7 and AO7.1 of the Excavation and filling code.

[222] The proposal does not satisfy all the assessment benchmarks. There is non-compliance with the Low-medium density residential zone code, the Natural areas overlay code, the Reconfiguring a lot code, Transport network overlay code, the Mount Peter local plan code, the Infrastructure works code, the Excavation and filling code, the purpose of the LGIP and provisions of the SPP.[136] To the extent that conditions can be imposed to address non-compliance with the assessment benchmarks this has been addressed through the course of these reasons. There are non-compliances that cannot be mitigated through the imposition of conditions of approval. This is not determinative of the appeal. The Court has a broad discretion to approve an application "even if the development does not comply with some of the assessment benchmarks".[137]

[223] The Appellant relies upon the following discretionary factors:[138]

(a) the absence of any material consequence arising because of the non-compliance;

(b) non-compliance with those assessment benchmarks would resolve a conflict between benchmarks;

(c) compliance with the assessment benchmark provisions particularised at paragraph 12 of the Notice of Appeal Grounds; and

(d) the matters set out in paragraphs 13 and 14 of the Notice of Appeal Grounds.

[224] The non-compliances are significant. They have material consequences for the safe and efficient delivery of transport, water, and wastewater infrastructure to this new community, the connection and integration of this community, and the future development of the locality. CairnsPlan envisages residential development on the Land. However, the connection of this substantial residential development to appropriate and timely infrastructure is fundamental to meeting the needs of that new community. I am not persuaded that the benefits associated with approval of the application including the cessation of the use of the Land for agriculture, where CairnsPlan envisages such a use continue for the longest extent possible, weigh in favour of approval. In the event that the proposal could be conditioned or redesigned to achieve compliance with the ecology assessment benchmarks, the infrastructure non-compliances and that the proposal is out of sequence, are material non-compliances and warrant refusal of the application.

[225] The decision of the Respondent is confirmed. The appeal is dismissed.

Appendix A - State Planning Policy and CairnsPlan Extracts

(2) The purpose of the local government infrastructure plan is to:

(a) integrate infrastructure planning with the land-use planning identified in the planning scheme;

(d) ensure that trunk infrastructure is planned and provided in an efficient and orderly manner;

(2) The purpose of the code will be achieved through the following overall outcomes:

(e) development reflects and responds to the natural features and constraints of the land;

Development is located, designed, operated and managed to respond to the characteristics, features and constraints of the site and its surrounds.

Note - Planning scheme policy - Site assessments provides guidance on identifying the characteristics, features and constraints of a site and its surrounds.

(1) The purpose of the Mount Peter local plan code is to facilitate the overall outcomes and precinct specific outcomes of the code through a well-planned, strategic and integrated approach to development of new communities in the Southern growth corridor.

(2) The purpose of the code will be achieved through the following overall outcomes:

Development sequencing and impacts of current activities

(a) development in the Mount Peter local plan area is consistent with the overall structure to achieve the indicative community needs specified for each Precinct in Table 7.2.7.4.b;

(d) land beyond the Initial development area as identified on the Mount Peter local plan maps contained in Schedule 2, is not developed for urban purposes until the area within the Initial development area is established for urban purposes and infrastructure has been brought to the edge of the Initial development area which is able to service land beyond the Initial development area;

(e) development within the Initial development area does not compromise the overall outcomes for development of the balance of the local plan area (i.e. within the areas outside the Initial development area);

(h) areas currently utilised for primary production continue to be used for this purpose for the longest extent possible.

(i) development contributes to an integrated and coordinated community and provides a structure that considers future development, infrastructure provision, land use allocations and defined places of activity, recreation, living and natural environment.

(o) communities are serviced by a functional and safe road network with an efficient internal circulation system and connectivity to the Bruce Highway;

(p) a public transport system is enabled by establishing a network of supportive roads and efficient subdivision layouts;

(q) the ultimate intensity and density of development is higher around transit nodes than other areas.

A structure plan is prepared outlining the manner in which the development outcomes have been integrated with respect to the following, including precinct specific outcomes:

Note - Planning scheme policy - Structure planning provides guidance on the preparation of structure plans.

A structure plan supports development proposing reconfiguration of land or material change of use and meets the needs of the planned community for Mount Peter, as described generally in Table 7.2.7.4.b.

Note - Guidance on preparing a structure plan is provided within Planning scheme policy - Structure planning.

Development occurs sequentially from the north, within the Initial development area (IDA) identified on the Mount Peter local plan maps contained in Schedule 2.

The provision of infrastructure for future communities, including roads, community facilities, open space, sport and recreation facilities, telecommunications where underground, water, sewerage, and electricity, is not impeded by the Initial development area identified on the Mount Peter local plan maps contained in Schedule 2.

Note - Telecommunication infrastructure in this acceptable outcome does not include high impact telecommunications facilities (e.g. telecommunication towers).

Development within the Initial development area does not compromise the ability for future precincts to achieve the overall outcomes sought for the Local Plan.

Neighbourhood centres in accordance with a structure plan

(1) The purpose of the Natural areas overlay is to protect the natural areas of the region through:

(a) avoiding development within areas of environmental significance, wetlands and declared fish habitat areas;

(b) minimising direct and indirect adverse impacts of development on areas of environmental significance;

(c) minimising adverse impacts on sensitive receiving environments;

(d) encouraging expansion of habitat and ecological connectivity and restoration of terrestrial and aquatic ecosystems.

(2) The purpose of the code will be achieved through the following overall outcomes:

(a) development is located to avoid adverse impacts on areas of environmental significance;

(b) where development cannot be located to avoid adverse impacts on areas of environmental significance, development:

(i) protects and enhances areas of environmental significance;

(ii) provides appropriate buffers to areas of environmental significance;

(iii) protects known populations and supporting habitat of rare and threatened flora and fauna species, as listed in relevant State and Commonwealth legislation;

(iv) ensures that adverse direct or indirect impacts on areas of environmental significance are minimised through design, siting, operation, management and mitigation measures;

(v) does not cause adverse impacts on the integrity and quality of water in upstream or downstream catchments, including declared fish habitat areas and the Great Barrier Reef World Heritage Area;

(vi) protects and maintains ecological and hydrological functions of waterways, wetlands, waterway corridors and declared fish habitat areas;

(vii) enhances connectivity across barriers for aquatic species and habitats;

(viii) rehabilitates degraded areas to provide improved habitat condition, connectivity, function and extent;

(ix) protects areas of environmental significance from weeds, pests and invasive species;

Development is set back from the Urban waterway A to protect and maintain:

(e) riparian and instream habitat values and connectivity;

Note - An ecological assessment report may be required to demonstrate compliance with the performance outcome.

Planning scheme policy - Natural environment provides guidance on preparing an ecological assessment report.

Development is on a lot within a Residential zone and:

(a) the subject waterway is contained within an easement, covenant, adjoining reserve for waterway purposes or adjoining land under local government control that has a drainage function;

(b) the development does not occur within that easement, covenant or adjoining reserve or adjoining land under local government control;

Development is on a lot within a Residential zone and is located within a building envelope as identified on a Building Envelope Plan that applies to the land under a condition of a relevant approval;

Development is on a lot that is separated from the subject waterway by an existing, constructed road within a dedicated road reserve;

Development does not occur on the part of the lot affected by a waterway corridor.

Note - refer to the definition of Residential zone within Schedule 1.2.

Note - Waterway corridor widths are identified within Table 8.2.11.3.b. Figure 8.2.11.a shows the location of waterway corridors for a waterway.

Note - Figures 8.2.11.3.b, 8.2.11.3.c, 8.2.11.3.d and 8.2.11.3.e provide guidance on meeting AO1.2, AO1.2, AO1.3 and AO1.4.

Development does not cause direct or indirect adverse impacts on areas of environmental significance.

Note - An ecological assessment report may be required to demonstrate compliance with the performance outcome.

Planning scheme policy - Natural environment provides guidance on preparing an ecological assessment report.

(a) avoided within areas of environmental significance;

(b) set back from areas of environmental significance to the greatest possible extent and is designed to buffer and minimise edge effects and other indirect impacts on areas of environmental significance;

Where development within an area of environmental significance cannot be avoided, development ensures adverse impacts on areas of environmental significance are minimised by:

(a) designing, siting, operating and managing development to:

(ii) be situated within existing cleared areas, including necessary fire management infrastructure and fire breaks;

(v) retain and restore habitat corridors and biodiversity values;

(vi) provide appropriate buffers to biodiversity areas;

(vii) maximise ecological connectivity between areas of significance by retaining continuous vegetated corridors;

(viii) minimise light and noise emission into biodiversity areas;

(ix) manage domestic animal movements, through adequate containment.

(b) protecting and maintaining the values of biodiversity areas;

(c) providing for strategic rehabilitation of vegetation species and coverage, and habitat connectivity;

(d) protecting undeveloped areas of environmental significance through appropriate land tenure;

(e) rehabilitating degraded areas to improve habitat condition, function and extent.

Note - An ecological assessment report may be required to demonstrate compliance with the AO4.2.

Note - Planning scheme policy - Natural environment provides guidance on preparing an ecological assessment report.

Development does not cause adverse impacts on the quality and integrity of water in upstream or down-stream catchments, including the Great Barrier Reef Marine Park.

Note - An ecological assessment report may be required to demonstrate compliance with the performance outcome.

Planning scheme policy - Natural environment provides guidance on preparing an ecological assessment report.

Development is set back from waterways to protect and maintain:

(e) riparian and instream habitat values and connectivity;

Note - An ecological assessment report may be required to demonstrate compliance with the performance outcome.

Planning scheme policy - Natural environment provides guidance on preparing an ecological assessment report.

Waterway corridors are provided adjacent to waterways in accordance with the requirements of Table 8.2.11.3.b.

Where a waterway corridor of an alternative width is proposed, the alternative width is supported by an evaluation of the waterway to ensure the protection and maintenance of:

(e) riparian and instream habitat values and connectivity;

Note - An ecological assessment report may be required to demonstrate compliance with the performance outcome. Planning scheme policy - Natural environment provides guidance on preparing an ecological assessment report

Development, other than Community infrastructure or open space is not located within a waterway or waterway corridor.

(2) The purpose of the code will be achieved through the following overall outcomes:

(b) development contributes to a safe and efficient transport network;

(c) development supports the existing and future role and function of the transport network;

(d) development does not compromise the safety and efficiency of major transport infrastructure and facilities.

Development supports the road hierarchy for the region.

Note - A Traffic impact assessment report prepared in accordance with Planning scheme policy - Parking and access is one way to demonstrate achievement of the Performance Outcomes.

Development is compatible with the intended role and function of the existing and future transport network as identified on the Transport network overlay - road hierarchy maps contained in Schedule 2.

Development does not compromise the safety and efficiency of the transport network.

Development is designed to provide access via the lowest order road, where legal and practicable access can be provided to that road.

Transport infrastructure is provided in an integrated and timely manner.

Note - A Traffic impact assessment report prepared in accordance with Planning scheme policy - Parking and access is one way to demonstrate achievement of the Performance Outcomes.

Development is designed and constructed in accordance with:

(a) the Local Government Infrastructure Plan (and mapping and supporting material) contained within Part 4 and Schedule 3;

(b) the Transport network overlay - road hierarchy maps contained in Schedule 2;

Editor's Note - The TransLink Public Transport Infrastructure Manual provides guidance on the design of public transport facilities.

Note - The Local Government Infrastructure Plan (and mapping and supporting material) contained within Part 4 and Schedule 3 contains information about the existing and future trunk transport infrastructure requirements, including the location and timing of trunk infrastructure.

Development does not compromise intended role and function or safety and efficiency of major transport corridors.

Note - A Traffic impact assessment report prepared in accordance with Planning scheme policy - Parking and access is one way to demonstrate achievement of the Performance Outcomes.

Development is compatible with the role and function (including the future role and function) of major transport corridors identified in the Transport network overlay - road hierarchy maps contained in Schedule 2.

Direct access is not provided to a major transport corridor where legal and practical access from another road is available.

Future intersection and access points to major transport corridors are provided in the locations identified in the following:

(a) the Local Government Infrastructure Plan - Plans for trunk infrastructure (transport network - roads) contained in Schedule 3;

(b) the Transport network overlay - road hierarchy maps contained in Schedule 2;

Note - Access points to State Controlled roads may require approval under the Transport Infrastructure Act 1994.

The layout, and proposed access of development is compatible with existing and future boundaries of the major transport corridors.

Editor's Note - Access points to State Controlled roads may require approval under the Transport Infrastructure Act 1994.

Lot reconfiguration assists in the implementation of the pedestrian and cycle networks to achieve safe, attractive and efficient pedestrian and cycle networks.

Development provides pedestrian and cycle infrastructure (including upgrades to existing infrastructure) in locations identified in accordance with the following:

(a) the Planning scheme policy FNQROC Regional Development Manual for the following hierarchy of road to the frontage of the site; Access Street, Residential Street, Minor Collector, Major Collector and Sub Arterial;

(b) the Transport network overlay - Pedestrian network and cycle network overlay maps contained in Schedule 2;

(c) the network plans contained in Council's Active Transport Strategy;

(d) the Local Government Infrastructure Plan Transport network - Pedestrian and cycle movement - Plans for trunk infrastructure maps contained in Schedule 3;

Note - Council's Active Transport Strategy provides guidance on the pedestrian and cycle infrastructure identified on the transport network overlay - pedestrian network maps and cycle network maps contained in Schedule 2.

Where required to be provided pedestrian and cycle infrastructure are provided in accordance with the relevant standards contained in the Planning scheme policy FNQROC Regional Development Manual.

(2) The purpose of the code will be achieved through the following overall outcomes:

(d) development is located, designed, constructed and managed to avoid or minimise impacts arising from altered stormwater quality or flow;

Development is planned, designed, constructed and operated to avoid or minimise adverse impacts on stormwater quality by:

Note - Planning Scheme Policy - Environmental Management Plans provides guidance on preparing a report, particularly a stormwater quality improvement plan, to demonstrate compliance with the purpose and outcomes of the Code.

A stormwater quality management plan is prepared, and provides for achievable stormwater quality treatment measures meeting design objectives listed in Table 9.3.2.3.b and Table 9.3.2.3.c, reflecting land use constraints, such as:

(c) acid sulfate soil and management of nutrients of concern;

An erosion and sediment control plan demonstrates that release of sediment-laden stormwater is avoided for the nominated design storm, and minimised when it is exceeded by addressing design objectives listed in Table 9.3.2.3.b for:

Erosion and sediment control practices are designed, installed, constructed, monitored, maintained, and carried out in accordance with the erosion and sediment control plan.

Development incorporates stormwater flow control measures to achieve the design objectives set out in Table 9.3.2.3.b and Table 9.3.2.3.c, including management of frequent flows, peak flows, and construction phase hydrological impacts.

Note - Planning scheme policy - FNQROC Regional Development Manual provides guidance on soil and water control measures to meet the requirements of the Environmental Protection Act 1994.

During construction phases of development, contractors and builders are to have consideration in their work methods and site preparation for their environmental duty to protect stormwater quality.

(2) The purpose of the code will be achieved through the following overall outcomes:

(b) works do not detrimentally impact upon the environment;

Excavation or filling does not result in a reduction of the water quality of receiving waters.

Water quality is maintained by compliance with the Design guidelines set out in section D5 of the Planning scheme policy - FNQROC Regional Development Manual.

Note - An Environmental Management Plan may be required to demonstrate how the impacts of works are controlled.

(1) The purpose of the Infrastructure works code is to ensure that infrastructure is provided in a manner and to a standard that meets the development's needs, the community's needs and is safe, efficient, and maintains and enhances the environmental qualities of the Region.

(2) The purpose of the code will be achieved through the following overall outcomes:

(a) infrastructure provision meets the needs of development and is safe and efficient; infrastructure is provided to the relevant standards;

(b) development achieves high environmental standards;

(c) development is located, designed, constructed and managed to avoid or minimise impacts arising from altered stormwater quality or flow, wastewater discharge, and the creation of non-tidal artificial waterways;

(d) development maintains the integrity of existing infrastructure;

(e) development does not detract from environmental values or the desired character and amenity of an area.

(b) ensures the safe and efficient movement of vehicles, pedestrians and cyclists to and from the site and adjacent to the site;

(c) does not have an adverse impact on the amenity of the site or surrounding area.

Development, other than Operational works by or for a public sector entity, and any associated buildings and structures, other than road infrastructure, is not located in the road reserve.

Note - Buildings and structures includes but is not limited to, decks, verandahs, porte-cocheres, layover bays, stairs, ramps or other accessibility structures, posts, fire hydrant boosters or cabinets. Accessibility structures are those features required to provide access to premises for people with a disability, including ramps and lifting devices and includes any changes of grade required to provide access for people with a disability, including retrofitting accessibility features in an existing building.

Development and any associated works, does not alter the grade of the road verge:

(b) where the existing crossfall of the road verge exceeds 2.5% in any direction, development, and any associated works does not alter the existing crossfall of the verge.

Development provides an adequate, safe and reliable supply of potable, firefighting and general use water.

Development provides a connection to Council's reticulated water supply system, that is:

(b) a connection provided in accordance with the relevant standards contained in Planning Scheme Policy - FNQROC Regional Development Manual;

Where a reticulated water supply system is not available to the premises, an on-site water storage tank/s with a minimum capacity of 30,000 litres and access to the tank/s for fire trucks is provided for each new dwelling.

Development provides for adequate treatment and disposal of wastewater.

Development provides a connection to Council's reticulated wastewater system, that is:

(b) a connection provided in accordance with the relevant standards contained in Planning Scheme Policy - FNQROC Regional Development Manual;

Where a reticulated wastewater system is not available to the premises, an on-site sewage facility or an environmentally relevant on-site sewage facility for treating and disposing sewage produced on the premises is provided in accordance with the requirements of the Plumbing and Drainage Act 2018 and the relevant standards contained in Planning Scheme Policy - FNQROC Regional Development Manual.

(a) ensures the safe and efficient movement of vehicles, pedestrians and cyclists to and from the site and adjacent to the site;

(b) connects with the adjoining and surrounding road infrastructure;

(c) does not have any adverse impacts on existing road infrastructure.

Road infrastructure is provided in accordance with the relevant standards for the particular hierarchy of the road as contained within Planning Scheme Policy - FNQROC Regional Development Manual.

Note - Road hierarchies are shown in the Transport network overlay - Road hierarchy maps contained in Schedule 2.

Development is designed, constructed and operated to avoid or minimise adverse construction related impacts on stormwater quality in natural and developed catchments by:

(b) protecting natural ecosystems and environmental values;

A stormwater quality management plan is prepared, and provides for achievable stormwater quality treatment measures meeting design objectives listed in Table 9.3.5.3.b, reflecting land use constraints, such as:

(c) acid sulfate soil and management of nutrients of concern; and

Note - To assist in satisfying the requirements of AO10.1, the stormwater quality management plan is to be prepared and certified by a suitably qualified Registered Professional Engineer of Queensland (RPEQ).

An erosion and sediment control plan is prepared that demonstrates that the release of sediment-laden stormwater is avoided for the nominated design storm event, and minimised when it is exceeded by addressing design objectives listed in Table 9.3.5.3.b for:

Note - During construction phases of development, contractors and builders are to have consideration in their work methods and site preparation for their environmental duty to protect stormwater quality.

Note - To assist in satisfying the requirements of AO12.2, the erosion and sediment control plan is to be prepared and certified by a suitably qualified Registered Professional Engineer of Queensland (RPEQ).

Erosion and sediment control practices are designed, installed, constructed, monitored, maintained, and carried out in accordance with the erosion and sediment control plan.

Development provides active transport infrastructure in appropriate locations and at the appropriate standard.

Pathways (including footpaths, cycle paths, shared pathways and kerb ramp crossovers) are located where identified in accordance with the following:

(a) The Planning Scheme Policy - FNQROC Regional Development Manual for the following hierarchy of road to the frontage of the site; Access Street, Minor Collector Road, Major Collector Road, Sub Arterial Road, Arterial Road and Industrial Collector Street; or

(b) The Transport network overlay - Pedestrian network and cycle network overlay maps contained in Schedule 2; or

(c) The network plans contained in Council's Active Transport Strategy; or

(d) The Local Government Infrastructure Plan Transport network - Pedestrian and cycle movement - Plans for trunk infrastructure maps contained in Schedule 3.

Note - Council's Active Transport Strategy provides guidance on the pedestrian and cycle infrastructure identified on the transport network overlay - pedestrian network maps and cycle network maps contained in Schedule 2.

Pathways are provided in accordance with the relevant standards contained in the Planning Scheme Policy - FNQROC Regional Development Manual - Standard Drawing S1035.

Development is designed and constructed in accordance with the Local Government Infrastructure Plan (and mapping and supporting material) contained within Part 4 and Schedule 3.

Note - trunk infrastructure is the infrastructure shown in the Local Government Infrastructure Plan for the following networks:

- transport (roads and pedestrian and cycle movement)

The Plans for trunk infrastructure contained in Schedule 3 identify the location of future trunk infrastructure.

The Schedule of Works in Part 4 Local Government Infrastructure Plan contains details of the trunk infrastructure, including timing.

Construction activities and works are undertaken in a manner that avoids, mitigates and minimises any adverse impacts on public safety, the amenity of the surrounding area or the environment.

Note - A construction management plan prepared by a suitably qualified person may be required to demonstrate compliance with the Performance Outcome. A construction management plan, should include but is not limited to the following matters:

(a) Screening of works such that nuisance to nearby residents and businesses does not occur;

(c) Dust, noise, odour and light emission suppression and management to avoid nuisance;

(d) Hours of carrying out works in accordance with the Environmental Protection Act and Policies;

(e) Storage of machinery, material and vehicles onsite so as to avoid creating a nuisance to surrounding properties and roads;

(g) Relevant approvals to the carrying out of works (including this approval and any subsequent approvals, including permits under local laws);

(i) Any associated Erosion and Sediment Control Plan or Traffic Management Plan.

Construction activities and works are undertaken in accordance with the relevant standards and procedures contained in the Planning Scheme Policy - FNQROC Regional Development Manual - CP1 Construction procedures.

Prior to the commencement of any construction activities, public notices and project signage are placed in accordance with the relevant standards and procedures contained in the Planning Scheme Policy - FNQROC Regional Development Manual - CP1 Construction procedures.

(2) The purpose of the code will be achieved through the following overall outcomes:

(b) lots have sufficient areas, dimensions and shapes to be suitable for their intended use, taking into account environmental features and site constraints;

(d) road networks provide connectivity that is integrated with adjoining existing or planned development while also catering for the safe and efficient access for pedestrians, cyclists and for public transport;

(f) development does not diminish environmental and scenic values;

(i) the appropriate standard of infrastructure is provided and the potential safety and amenity impacts associated with infrastructure provision are minimised.

Development responds appropriately to its local context, natural systems and site features.

(c) vistas and vantage points are retained and/or are incorporated into open space, road reserves, near to lot boundaries or as common property.

Safety of users of the development and the surrounding community is considered and incorporated into the design of the reconfiguration.

Note - Planning scheme policy - Crime prevention through environmental design (CPTED) provides guidance on appropriate design responses.

Development protects the cane rail network to support the on-going operation of the agricultural industry.

Note - The cane rail network is shown on the Strategic framework maps and Transport network overlay maps contained in Schedule 2.

Development establishes a structured neighbourhood that provides for:

(b) the growth of new communities with different lot layouts and neighbourhood blocks that provide for different land use intents over time;

(c) a range of community infrastructure, including linear open space links, local open space which is adaptable to a variety of uses;

(d) a network of interconnected roads and pathways which convey and connect local and wider vehicular traffic, public transport and active transport with activity centres, employment areas and focal points within communities;

(e) a network of essential infrastructure including water, sewerage, electricity and telecommunications.

Note - A detailed structure plan prepared in accordance with Planning scheme policy - Structure planning is one way of demonstrating compliance with the performance outcomes.

Neighbourhood design results in a safe and connected network of walkable neighbourhoods.

Neighbourhood street networks provide an easy choice of routes within and to surrounding neighbourhoods, and connect to public transport, employment, open space and services.

Development does not establish cul de sac streets unless:

(a) cul-de-sacs are a feature of the existing pattern of development in the area;

(b) there is a physical feature or incompatible zone change that dictates the need to use cul de sac streets.

(a) is designed to be no longer than 150 metres in length;

(b) is designed so that the end of the cul de sac is visible from its entrance;

(c) provides connections from the top of the cul de sac to other streets for pedestrians and cyclists with a minimum width of 6 metres.

The function of new roads is clearly identified and legible and provides integration, safety and convenience for all users.

Note - The design and construction standards are set out in Planning scheme policy - FNQROC Regional Development Manual, with reference to the specifications set out in Sections D1 and D3.

Street design supports an urban form that creates walkable neighbourhoods and the design:

(a) is appropriate to the function(s) of the street;

(b) meets the needs of users and gives priority to the needs of vulnerable users.

(1) The outcomes of significant infrastructure plans and initiatives by all levels of government are considered and reflected, where relevant.

(2) Development achieves a high level of integration with infrastructure planning to:

(a) promote the most efficient, effective and flexible use of existing and planned infrastructure

(b) realise multiple economic, social and environmental benefits from infrastructure investment

(c) ensure consideration of future infrastructure needed to support infill and greenfield growth areas

(d) optimise the location of future infrastructure within communities to provide greater access to facilities and services and enable productivity improvements.

(b) in a logical and orderly location, form and sequence to enable the cost-effective delivery of state and local infrastructure to service development.

(4) Existing and planned infrastructure is protected from development that would compromise the ability of infrastructure and associated services to operate safely and efficiently.

(2) Development is located in areas currently serviced by transport infrastructure, and where this cannot be achieved, development is facilitated in a logical and orderly location, form and sequence to enable cost-effective delivery of new transport infrastructure to service development.

(3) Development achieves a high level of integration with transport infrastructure and supports public passenger transport and active transport as attractive alternatives to private transport.

(1) Development is located in areas to avoid significant impacts on matters of national environmental significance and considers the requirements of the Environment Protection and Biodiversity Conservation Act 1999.

(2) Matters of state environmental significance are identified2 and development is located in areas that avoid adverse impacts; where adverse impacts cannot be reasonably avoided, they are minimised3.

(3) Matters of local environmental significance are identified and development is located in areas that avoid adverse impacts; where adverse impacts cannot be reasonably avoided, they are minimised4.

2 Note: A local planning instrument must not include assessment criteria for matters of state environmental significance which duplicate a state assessment process.

3 Note: Where it is demonstrated that adverse impacts cannot be avoided or minimised, significant residual impacts on matters of state environmental significance may require an offset in accordance in accordance with the Environmental Offsets Act 2014.

4 Note: Where it is demonstrated that adverse impacts cannot be avoided or minimised, a local government may require an offset for matters of local environmental significance in accordance with the Environmental Offsets Act 2014.

(3) Development is located, designed, constructed and operated to avoid or minimise adverse impacts on environmental values of receiving waters arising from:

(d) the release and mobilisation of nutrients and sediments.

(a) achieves the applicable stormwater management design objectives on-site, as identified in table B (appendix 2); or

(b) achieves an alternative locally appropriate solution off-site that achieves an equivalent or improved water quality outcome to the relevant stormwater management design objectives in table B (appendix 2).

[1] Ex. 8, Terrestrial Ecology JER, page 4, para 2.

[2] Ex. 7, Aquatic Ecology JER 2, page 5, para 9.

[3] Ex. 7, Aquatic Ecology JER 2, page 5, para 9.

[4] Ex. 7, Aquatic Ecology JER 2, page 5, para 11.

[5] Ex. 7, Aquatic Ecology JER 2, page 20, para 25.

[6] Ex. 8, Terrestrial Ecology JER, page 4, para 3.

[7] Ex. 8, Terrestrial Ecology JER, page 4, para 5.

[9] Ex.11, Traffic JER, page 2, para 10.

[10] Ex.11, Traffic JER, page 2, para 13.

[11] Ex.11, Traffic JER, page 2 at para 13.

[12] Ex.11, Traffic JER, page 3, para 15.

[13] Ex. 43, CEO - Certificate - Mount Peter approvals: Volume 1 of 2, paras 10 - 18.

[14] Ex. 43, CEO - Certificate - Mount Peter approvals: Volume 1 of 2, paras 1 - 9.

[15] Ex. 43, CEO - Certificate - Mount Peter approvals: Volume 1 of 2, paras 19 - 20.

[16] Ex. 9, Town Planners JER, [69], page 14.

[17] Ex. 1, Appeal Book, pages 25 and 26.

[19] Explanatory Notes Planning Bill 2015, pages 63-64.

[20] Planning and Environment Court Act 2016 (Qld) s 47(1).

[21] Planning and Environment Court Act 2016 (Qld) s 43.

[22] Planning and Environment Court Act 2016 (Qld) s 45(1).

[23] Planning Act 2016 (Qld) s 45(3).

[24] Sections 43(1) and (3)(a) Planning Act; Ex. 4, CEO Certificate - Common Material, para 11, page 2.

[25] Section 26(3) Regulation.

[26] Ex. 3, CEO Certificate, CairnsPlan extracts, page 27 at 2.1 State Planning Policy.

[27] Section 27 Regulation.

[28] [2018] QPEC 30; [2018] QPELR 941 at [102]; [2018] QPEC 30.

[29] Trinity Park Investments Pty Ltd v Cairns Regional Council [2023] QPELR 763; [2022] QPEC 15 at [10].

[30] Landarch Properties Pty Ltd v Logan City Council & Anor [2024] QPEC 47 at [43].

[31] Appellants' Part B submissions, para 9.

[32] Integrated Planning Act 1977 (Qld) s 3.5.13(4)(b).

[34] [2002] QCA 367; [2003] 1 Qd.R 548 at [8].

[35] Ex. 1, Appeal Book, page 19, para 14(b).

[36] Ex. 3, CEO Certificate, page 216, s 3.2(3).

[37] Ex. 3, CairnsPlan extracts, s1.3.2, page 9.

[38] Ex. 3, CairnsPlan extracts, Clause 1.5, page 10.

[39] Ken Drew Town Planning Pty Ltd v Brisbane City Council (2017) QPELR 49; [2016] QPEC 62; Bilalis v Brisbane City Council (2017) QPELR 997; [2017] QPEC 42; Friends of Buddina v Sunshine Coast Regional Council & Anor [2023] QPELR 1; [2021] QPEC 57.

[40] Mariott v Brisbane City Council [2015] QPELR 910; [2015] QPEC 45, [5].

[41] Stephen Family Pastoral Pty Ltd Stephen Family Pastoral Pty Ltd as Trustee for the Stephen's Family Pastoral Trust v Logan City Council & Loganview Road North Pty Ltd [2025] QPEC 27 at [229] and [231], citing AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1; and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; (2014) QPELR 686, 698-700 [52]-[58].

[42] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; [1998] HCA 28.

[43] Acts Interpretation Act 1954 (Qld) s 14B(1).

[44] Ex. 3, CEO Certificate, CairnsPlan extracts, page 49, Pt 4, LGIP at 4.1(2).

[45] Ex. 5, State interest - infrastructure integration, page 56.

[46] Ex. 46, Third Further Amended Reasons for Refusal.

[47] Several of the assessment benchmarks with which non-compliance is alleged are raised in respect of more than one issue. Where this occurs it is not always necessary to address each provision with respect to each issue for which it is raised where non-compliance has already been established.

[48] The Respondent alleges non-compliance with provisions of the Strategic framework but this is not a benchmark; see paras [40] and [41].

[50] PO1, Mount Peter local plan code; Ex. 3, CairnsPlan extracts, page 91.

[51] Ex. 3, CairnsPlan extracts, Planning Scheme Policy - Structure Planning, s 3(2).

[53] OO2(a) and AO3 and Table 7.2.7.4.b.

[55] Low-medium density residential zone code OO2(f).

[57] Ex. 21, Separate Report of Andrew Douglas, para 149.

[59] Ex. 10, JER Network Infrastructure (water and sewerage), Fig. 2.

[61] See Reasons at paras 101, 107, 115.

[63] Ex. 3, CairnsPlan extracts, s4.1(3)(b) and 4.3(1), pages 49 and 59.

[64] Ex. 3, CairnsPlan extracts, s4.5, page 68.

[65] Ex. 1, Appeal Book, page 24, Condition 2.

[66] Ex. 1, Appeal Book, page 24, Condition 4.

[68] Ex. 15, Individual Report of Alan Hoban, para 5.10, page 6.

[70] T7 -31, ll 16 - 31 and T7-32, l 11.

[71] Ex. 10, JER Network Infrastructure (water and sewerage), Fig. 2, page 7.

[72] T7-32, LL 41 - 4 and T7-34, LL 5 - 6.

[73] T7-31, T7-32, T7-33, ll 39 - 46 to T7-35.

[74] Ex. 31, Further CEO Certificate, pages 14, 20 and 27.

[75] Ex. 10, JER Network Infrastructure (water and sewerage), para 3.4.17, page 9.

[77] Ex. 1, Appeal Book, Conditions 1-7, pages 23-35.

[78] Ex. 12, Separate Report of Greg Ovenden, page 3.

[79] Ex. 19, Separate Report of Adam Pekol, para 11(b).

[80] Ex. 43, CEO - Certificate - Mount Peter approvals: Volume 1 of 2, page 6.

[82] Ex. 19, Separate Report of Adam Pekol, para 15. Mr Pekol derives support for this because the proposed density for the development on the Land is less than that the LGIP's assumed density.

[83] Ex. 19, Separate Report of Adam Pekol, para 11(e); Ex. 11, Traffic JER, para 29.

[84] Ex. 19A, Annexure F - Road Traffic Forecasts.

[85] Ex. 19, Separate Report of Adam Pekol, paras 20 and 21.

[88] Jedfire Pty Ltd v Logan City Council and Anor (1995) QPELR 41; [1994] QPEC 47, page 43.

[89] Ex 4, CEO Certificate - Common Material, Volume 8, page 2056.

[93] Ex. 12A, Amended Bundle of Plans, page 5.

[95] T4-68, ll 1 - 5, and ll 25 - 29 and 5-32.

[100] Ex. 3, CEO Certificate, CairnsPlan extracts, OO2(e), page 80.

[101] OO2(a) of the Natural Areas Overlay Code, Ex. 3, CEO Certificate - CairnsPlan, page 102.

[102] Ex.3, CEO Certificate, CairnsPlan extracts, s5.3(6), page 72.

[103] Ex. 4, CEO Certificate - Common Material, page 190.

[107] Ex. 6, Water JER, para 86, page 19.

[108] Ex. 3, CairnsPlan extracts, AO10.1 and Figure 8.2.11.3.a, pages 107 and 108.

[109] Ex. 3, CairnsPlan extracts, Table 8.2.11.3.b, page 108.

[111] Ex. 8, Terrestrial Ecology JER, paras 20, 34 and 52.

[112] See Ex. 23, Mr Clowes Individual Report, Map 1, page 14.

[113] Ex. 7, Second Aquatic Ecology JER, pages 10-11.

[114] Ex. 7, Second Aquatic Ecology JER, para 25, page 20.

[115] Ex. 7, Second Aquatic Ecology JER, para 26, page 22.

[116] Ex. 7, Second Aquatic Ecology JER, para 63.

[117] Ex. 7, Second Aquatic Ecology JER, para 78.

[118] T3-22, ll 40 - 43, T3-70, ll 45 - 47.

[119] Ex. 15, Individual Report of Alan Hoban, ll 374 - 376, page 21.

[120] Ex. 1, Appeal Book, Condition 22, page 28.

[121] While listed in Ex. 46, Third Further Amended Reasons for Refusal, para 20, the Purpose of the Environmental performance code is not in issue; T2 -27, l 16.

[126] Ex. 6, Water JER, paras 87 and 86.

[135] Ex. 13, Separate Report of David Bristow, para 7i, page 3.

[136] If the 3 pathways to compliance was applied compliance would be achieved with the Excavation and filling code but non-compliance with the other codes would continue.

[138] Exhibit 1A, Communication regarding Notice of Appeal.