Residents hope tougher environmental reforms will rein in controversial development proposals
Stronger EPBC laws spark local hope
RESIDENTS fighting to protect and preserve the unique environment of Tamborine Mountain and its surrounding World Heritage listed Gondwana Rainforest hope new strengthened federal government environmental laws will provide the legal teeth needed to prevent inappropriate development.
Environmental law expert Professor Lee Godden, from the University of Melbourne Law school said under the strengthened Environment Protection and Biodiversity Conservation Act 1999 (EPBC) developments will no longer escape scrutiny simply because impacts are indirect, regulated at state level, or spread out over time, and projects must be referred for federal assessment if they pose a credible risk to nationally protected environments.
She said compliance with regulations would also no longer be the test, instead impact will be.
Controversial proposals under the microscope
For those fighting two of the mountains biggest and most controversial developments: the Living Gems over 50s retirement facility in Kidd Street and the MacDonnell Road retirement facility, it is hoped the revised laws will force Scenic Rim Regional Council to take the environmental impacts seriously in their decision-making process.
Jeannette Lockey, president of the Tamborine Mountain Progress Association, has been fighting development on the mountain for 30 years.
“I think it is excellent,” she said of the law reforms.
“It is the best thing that has happened for a long time. It restricts the very loose way the developers deal with possible or probable environmental impacts.”
Ms Lockey believed the council should be mindful of the revised laws even when making a decision on the two developments currently before them.
“Council would be remiss if they didn’t pass on the enhanced federal laws. It would affect their credibility,” she stated.
“We have reached tipping point environmentally.”
“We are going downhill now. Council doesn’t understand the constant development applications coming into the mountain have not ceased and council doesn’t have the wherewithal to fight them.
“So many people for years have supported the Local Area Plan and if council stuck to it, we wouldn’t have the problems.”
Former local councillor Nigel Waistell agreed.
“The new laws are certainly tougher and will help us protect the environment from the council making inappropriate decisions,” he said.
The Living Gems retirement facility is a proposal to build 141 two-bedroom homes on the 8.85-hectare site, which is within the Cedar Creek Catchment and close to national parks.
Council is still assessing the application, having requested a ninth extension until February 24.
The council received 498 submissions from the public, reflecting the fierce community opposition to the development application.
Council director of planning, development and environment Leo Jensen said the application for Kidd Street is a significant project in the context of the region, requiring detailed analysis and scrutiny of many expert reports.
“Including the substantial number of submissions received, this work has taken a significant portion of time to collate and review in a detailed assessment report,” he said.
“The assessment is being undertaken in accordance with the relevant legislation and the framework provided by the Planning Act 2016.”
Fifty-nine homes are planned by Cedar Falcon Consultants and Investments for the MacDonnell Road retirement village on the 4.04 hectare site – a mere 250 metres from the national park.
While the council continues to evaluate the plans Professor Godden said the developers and council need to be seriously considering the existing federal government laws.
She said under the current EPBC Act the likely impact on a Matter of National Environmental Significance (MNES) such as threatened ecological communities and Ramsar wetlands has been the test for determining whether a proposed development, such as Living Gems, needs to be referred to the Act.
While the assessment is done by the state minister the approval must be independently given by the federal minister.
Frogs, forests and federal triggers
Although Tamborine Mountain does not have Ramsar listed wetlands, it is mapped as High Ecological Value under the Queensland Wetlands Program and is protected under state vegetation management laws, particularly around the Knoll Road and Curtis Road areas.
Creeks from Tamborine Mountain feed directly into Moreton Bay Ramsar wetland, an internationally protected ecosystem just 40km downstream, making it an MNES.
The developer’s reports acknowledge a downstream hydrological connectivity, which Professor Godden said engages federal law once that connection exists.
The wetlands form part of a critically endangered lowland rainforest and swamp sclerophyll forest communities providing habitat for the endangered Giant Barred Frog, the vulnerable Tusked Frog and the critically endangered Coxen’s Fig Parrot.
Ecologist, Dr Howard Rogers said Tusked Frogs have been officially reported on the Atlas of Living Australia on the track to Curtis Falls as well as elsewhere on the mountain, particularly near creeks and water bodies.
“There is a high likelihood of occurrence in any nearby riparian areas. This means a significant impact assessment needs to be done. This is a self-assessment by the developer to determine impacts if nearby streams would be impacted,” he said.
“If any drainage lines are present on the development site searches for the Tusked Frog need to be undertaken based on Queensland government targeted species survey guidelines for this species.
“If the significant impact assessment confirms that the frog is likely to be impacted, targeted mitigation and management measures need to be implemented that meet the guidelines for this species.”
Indirect impacts now in focus
Professor Godden said sometimes the EPBC Act will take into account indirect impacts – such as nutrients, contaminants, and altered water flows moving off-site – the same as direct clearing or construction and she hoped the reforms will make it clearer that it’s not just direct impacts of a project that need to be considered.
“Wastewater irrigation and stormwater discharge create plausible pathways for nutrients, pathogens, sediments, and pollutants to move downhill into sensitive ecosystems over time, particularly during heavy rainfall,” she stated.
Ms Lockey said when there is heavy rainfall the junction at Curtis Road can have metre deep flooding with a huge flow going downhill from the Kidd Street development.
Professor Godden said the credible risk to protected environments through wastewater, stormwater, or downstream effects was exactly the issue with the proposed Living Gems Kidd Street development.
She said the development relies on a commercial-scale on-site sewage treatment plant, with treated effluent irrigated onto land, and a stormwater system that captures and discharges runoff from roads, roofs, and hard surfaces. Individually, these systems are presented as compliant with Queensland regulations.
Professor Godden said it is hoped the new test can allow more clearly for indirect and cumulative impacts on MNES, which includes endangered species, ecological communities and listed Ramsar wetlands.
“The reforms also introduce national environmental standards for MNES. A proposed development in terms of its outcomes must comply with the standards,” she explained.
A spokesperson for the Department of Climate Change, Energy, the Environment and Water said it had not received a referral for the Living Gems development.
They said if a proposed action is likely to have significant impacts on any matters protected by the EPBC Act, then a referral to the department is required.
“Among the matters protected under the EPBC Act are threatened species and ecological communities and World Heritage.
“A referral is a written request for the environment minister to decide if the action needs assessment and approval under the EPBC Act.”
“The new environmental laws do not affect the requirement to refer actions that are likely to have significant impacts. However, when the relevant provisions commence, they will provide for better environmental protections and faster decisions on whether actions can proceed.”
However, Mr Jensen said the development assessment process, as detailed in the Planning Act 2016, is clear about which developments impact Matters of State Environmental Significance and MNES and whether or not they require assessment by the relevant agencies.
“These processes have been followed,” he stated.
“Council consistently reviews its assessment practices and will continue to do so, to ensure assessments are undertaken in accordance with the required legislation.”
Professor Godden noted that the Kidd Street development’s modelling focuses on average conditions and assumes continuous, perfect operation of treatment systems. 
“What it does not assess — and what federal law now requires — are failure scenarios: power outages, intense rainfall, storage overflows, or maintenance lapses.
“Under the precautionary principle, the absence of this analysis increases concern rather than reducing it,” she said, adding that the council ought to be taking seriously this principle and adopting a more rigorous standard.
“Importantly, arguments about social benefit, housing need, ageing-in-place, or economic contribution do not matter under the EPBC Act. Federal environmental law does not allow environmental risk to be offset by community benefit. Nor does the fact that discharges may be ‘lawful’ under state rules remove federal relevance. A discharge can be lawful and still cause unacceptable national environmental harm.”
The introduction of ongoing wastewater and stormwater systems upslope of nationally protected waterways, without demonstrating that indirect, cumulative, and worst-case impacts can be avoided, Professor Godden said, means the project is capable of being a “controlled action” under federal law, requiring referral and assessment before it can proceed — regardless of what happens at the local council level.
Koalas add to concerns
The Kidd Street development also contains core koala habitat, which the development plans show is outside the development footprint.
While no koalas were recorded in the Kidd St environmental assessment report, one was recorded on the Atlas of Living Australia website in Reserve Road in late November last year.
Australian Koala Foundation chair Deborah Tabart said the presence of the koala means the application should be referred for federal approval.
“Koalas are at an incredible risk on the mountain,” she stated.
“Council should be asking the state government for it to be referred to the federal government.”
Ms Tabart said the council and developer should be considering the measures that were implemented at Koala Beach in Northern New South Wales which included traffic calming devices, dogs and cats prohibited, and fences raised to allow free access for wildlife.
“Companies have a duty of care to ensure residents become custodians of where they are living,” she explained.
Community prepares for next steps
Mr Waistell is gearing up to fight the Kidd Street development in court but said a local resident had submitted a third-party referral for an assessment on each development to the federal government in the hope they will call for a review.
He said the cumulative impacts of these developments and future ones needed to be considered in accordance with the law.
Federal Member for Wright Scott Buchholz said he encouraged residents with concerns over developments to contact the local councillor.
Former CEO of Living Gems Adrian Puljich declined to comment and said there would be no comment from his family until council had made a decision.
Cedar Falcon Consultants and Investments were not able to be contacted for comment.
