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Law Reform · Nature & the Reef

Is it fight or flight for Toondah Harbour?

31 July, 2018

Concerns remain over the Toondah Harbour Development and the project's impact on the protected RAMSAR wetlands and migratory birds, turtles, dugongs and koalas. Understand the assessment process, your rights and how to have your say on development applications.

**Update at 30 July 2018 - Toondah Harbour has been declared to be a ‘controlled action’ that will be assessed by EIS.**

‘Toondah Harbour Development’ is a proposal for a mixed-use development on the waterfront at Redlands. The proposed development includes residential, retail, marina development, hotel, port facilities and tourism infrastructure.

There is concern over this development proposal, due to the impacts proposed to protected Ramsar wetlands and numerous listed protected species including migratory birds, threatened turtles, dugongs and koalas.

The development has been proposed as part of a ‘Priority Development Area’ declaration made over this area under the Economic Development Act 2012 (Qld). Following a competitive tender process, Walker Group Holdings was selected as the developer for the proposed redevelopment of Toondah Harbour, estimated at costing $1.3 billion (see the development proposal).

The development is subject to a number of state approvals as well as a federal approval. We have focused this information on the assessment processes for any development application under the Priority Development Area (PDA) declared area, and for the federal Environment Protection and Biodiversity Conservation Act 1999 (Cth).

If you would like more information on the other approval processes, please contact us.

Approvals needed for the Toondah Harbour Development

There are a number of approvals that the proponent has stated that are likely to be required for the Toondah Harbour Development. These include:

  1. Priority Development Area development application under the Economic Development Act 2012 (ED Act);
  2. Marine Parks Permits under the Marine Parks (Moreton Bay) Zoning Plan 2008 (Qld) and the Marine Parks Act 2004 (Qld) framework which include:
    1. Amendment of the Moreton Bay Zoning Plan to declare a designated works area;
    2. Revocation of part of the Moreton Bay Marine Park; and
    3. Permission for reclamation;
  3. Environmental authority for dredging under the Environmental Protection Act 1994 (Qld);
  4. Allocation of resource under the Coastal Protection and Management Act 1995 (Qld);
  5. Approvals outside the Priority Development Area; and
  6. Federal environmental approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Priority Development Area planning process

Toondah Harbour was declared a Priority Development Area (PDA) by the Queensland Government at the request of Redland City Council on 21 June 2013.

The process for planning and assessment in PDAs is different to development under planning schemes and the Planning Act 2016 (Qld) (Planning Act). The declaration of a PDA is a method for fast tracking and concentrating development where this is seen as necessary by the state and local government.

PDAs are subject to their own development schemes made especially for these areas. Where a PDA applies, existing local planning instruments typically no longer apply to development proposed in the PDA area.

You can see our factsheet here on PDAs generally.

Planning for the area was undertaken by the Queensland Government, in partnership with Redland City Council, and a final development scheme was approved on 29 May 2014.

You can view the development scheme for the Toondah Harbour PDA here: https://dsdmip.qld.gov.au/edq/toondah-harbour.html

Applications for development within the Toondah Harbour PDA will be assessed against the Scheme and as such, the standard process for assessing development applications under the Planning Act 2016 (Qld) (Planning Act) will not apply.

Can a PDA be revoked?

It is within the power of the Queensland Government to revoke a PDA under the ED Act, section 42.

Your right to have your say on PDA development applications:

The Development Scheme has been already publicly notified as required under the ED Act.

The PDA Development Scheme sets out when public notification is required for development applications. It states that the following applications must be notified:

  • the application includes a proposal for development which does not comply with the Precinct provisions, maps 2, 3 and 4 in the Toondah Harbour Development Scheme or the intent of those maps;
  • the application is for development which may have adverse impacts on the amenity or development potential of adjoining land under separate ownership; or
  • the application is for a use or of a size or nature that warrants public notification.

If a development application falls outside of these criteria, there will be no opportunity for the public to have their say on the development application at all. This is a significant curtailment of the normal involvement the public expects and deserves to ensure that planning decisions are well informed, accountable and risk of corruption is reduced.

You can check the status of the Toondah Harbour PDA and any development applications which may be lodged in the future online on the Redland City Council ‘PD Online’ website here.

Court review options

Unfortunately, development proposed under a PDA is not subject to third party submission and appeal rights that would normally apply under Planning Act 2016 (Qld).

There may be a right to apply for reasons for a decision and/or judicial review of a decision under the ED Act and the Judicial Review Act 1991 (Qld).

To obtain reasons for decisions, you should apply to the decision maker directly with a request for reasons under the Judicial Review Act 1991 (Qld) for the particular decision which you should specify.

You should obtain legal advice before seeking judicial review of a decision as there may be costs risks associated with applications brought without sufficient legal grounds.

Federal Government EPBC Referral

The proponent has referred three variations of the project to the Commonwealth Minister for the Environment under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).  The proponent withdrew the first proposal (reference 2015/7612) in May 2017.  The status of the other two proposals are as follows.

  • EPBC reference 2017/7939:  In May 2017, Walker Group referred a revised proposal. On 28 June 2017, the then Minister decided that the proposed action was a ‘controlled action’ that needed assessment under the EPBC Act, due to the potential significant impact on the Ramsar wetland and protected species and communities.  This was despite his department recommending that the proposal was ‘clearly unacceptable’ and should not proceed.  However, the Minister does not appear to have made the related ‘assessment approach’ decision within the required timeframe.  The proponent has not withdrawn the referral.
  • EPBC reference 2018/8225: In June 2018, Walker Group submitted a further revised proposal.  In July 2018, the Minister’s delegate decided that it was a controlled action to be assessed by environmental impact statement.  After public consultation, the guidelines for preparing the EIS were finalised.  The proponent is now likely to be preparing a draft EIS over 12 to 18 months, which will then be released for public comment.

Your right to have your say on the current Federal EPBC referral:

Public comments on referral of the 2018/8225 proposal, and draft EIS guidelines, have closed.  However, once the Minister (or delegate) approves the draft EIS, they must set a public comment period on the draft EIS of at least 20 business days.  The Minister may also seek public comment on a proposed final decision on whether or not to approve the development.

You can check the status of the federal EPBC assessment by checking the referrals website and searching for the name ‘Toondah Harbour’ here. Notice of dates for further public notification can be found here.

Court review options

There are no third party merits appeal rights under the EPBC Act.

However, there are rights to apply for reasons for decisions and/or judicial review of decisions made under the EPBC Act. Judicial review scrutinises whether the correct legal process was undertaken in making the decision, rather than whether it was the correct decision on the basis of the materials before the decision maker. Applications for judicial review must be filed within 28 days of being given the decision or receiving reasons for the decision, or within a ‘reasonable time’ of the decision.  If reasons are not provided with the decision, it is possible to apply for reasons under s 13  of the Administrative Decisions (Judicial Review) Act 1977 (Cth). This will help to determine the prospects of any grounds for judicial review of the decision.

Please see our factsheet here for more information on your rights to be involved in EPBC Act decisions.

For more detailed information contact EDO Qld or seek advice from a private solicitor.

You can find out more information here:

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