Environmental Law Australia

Springbrook groundwater case

This case study involves a current appeal against refusal of an application for commercial groundwater extraction in the midst of World Heritage areas on the Springbrook plateau in southeast Queensland.

Background

In 2018 Hoffmann Drilling Pty Ltd Superannuation Fund applied under the Planning Act 2016 (Qld) for a material change of use (MCU) for Extractive Industry–Commercial Groundwater Extraction at 263 Repeater Station Road, Springbrook, Queensland (however, the application was not properly made until 2019). The extracted groundwater is proposed to be trucked from the Springbrook Plateau for use by water bottling industries on the Gold Coast.

In December 2019 the Gold Coast City Council unanimously refused the application. The Council’s later List of Matters relied upon as grounds for refusal included that “the cumulative impacts of the proposed extraction with other groundwater extraction operations and climate change” on the surrounding matters of environmental significance.

In January 2020 the applicant appealed the Council’s refusal of its application to the Planning and Environment Court (the P&E Court).

The Australian Rainforest Conservation Society Inc (ARCS), Gecko and three Springbrook residents have elected to join the appeal as Co-Respondents due to concerns about the impacts of the development, including impacts to the outstanding universal value of the nearby Springbrook National Park, which is part of the Gondwana Rainforests of Australia World Heritage Area inscribed on the World Heritage List under the World Heritage Convention.

The development is proposed within the catchment of Boy-Ull Creek, approximately 1000m upstream from Twin Falls within Springbrook National Park, which is part of the World Heritage Area.

Numerous groundwater springs and seeps are located within 300m (horizontally) and at a similar height above sea level as the proposed groundwater extraction bores (which will draw groundwater from approximately 80m depth on the ridgeline).

In addition to trees and other plants, many animal species depend on groundwater springs and seeps maintaining soil moisture and streamflow during drier times.

One such species found at Springbrook is the pouched frog (Assa darlingtoni), or hip pocket frog, a small (<3cm), terrestrial frog found in rainforests in mountain areas.

The pouched frog hides under logs, rocks, and leaf litter in rainforests and adjacent wet sclerophyll forests. Eggs are laid on the land (under decomposing logs, rock or leaf litter) as the tadpoles do not need water for metamorphosis. Breeding takes place during spring and summer. Both male and female frogs guard the nest of eggs and the male carries the tadpoles in the pouch once they have hatched. The tadpoles will reside in the pouch until they have morphed.

Groundwater extraction that reduces soil moisture in the surrounding areas of rainforest will, therefore, impact on species like the pouched frog.

Legal context of the appeal

In assessing the proposed development, the P&E Court must apply the statutory framework created by the Planning Act 2016 (Qld) (PA). Sections 45 and 60 are particularly important in this statutory framework for the present appeal.

The proposed groundwater extraction is categorised as impact assessable under the Gold Coast planning scheme, City Plan (version 6), therefore, in applying section 60(3) of the PA, the Court must carry out an impact assessment as defined in section 45 of the Act. This, relevantly, requires the Court to assess the proposed development against:

  • the assessment benchmarks stated in the planning scheme; and
  • any other relevant matter (e.g. a planning need), other than a person’s personal circumstances, financial or otherwise.

The P&E Court has considered this test in numerous cases, including in relation to the Gold Coast City Plan.

A useful recent case involving the Gold Coast City Plan and assessment of impacts on matters of environmental significance is GTH Resorts No 5 Pty Ltd v Gold Coast City Council [2020] QPEC 20 (Williamson QC DCJ). The facts and relevant provisions of City Plan in that case were different to the present appeal but it provides a useful overview of the framework within which the Court will assess the current proposed development.

In that case, Williamson QC DCJ noted, at [103]-[104], that the “land’s strategic location in an ecological sense” for connectivity of habitat was an important consideration. His Honour also rejected, at [107], the assumption that “vegetation is expendable where reserves are high” and that “City Plan provides no support for this view.”

The legal context of the appeal also includes that the Queensland Government has temporarily banned new commercial groundwater bores being drilled on Tamborine Mountain and Springbrook. The banned was imposed by a moratorium under s 30 of the Water Act 2000 (Qld). It commenced on 6 March 2020 and has been extended.

Maintaining World Heritage values and integrity

ARCS argues that the potential impacts of the proposed development on the surrounding Gondwana Rainforests of Australia World Heritage Area and that approval would not be consistent with Australia’s obligations under the World Heritage Convention.

The integrity of a World Heritage property is an important aspect of its listing under the Convention. The World Heritage Committee has defined “integrity” in paragraph 88 of the Operational Guidelines for the the Implementation of the World Heritage Convention as:

“Integrity is a measure of the wholeness and intactness of the natural and/or cultural heritage and its attributes. Examining the conditions of integrity, therefore requires assessing the extent to which the property:
a) includes all elements necessary to express its Outstanding Universal Value;
b) is of adequate size to ensure the complete representation of the features and processes which convey the property’s significance;
c) suffers from adverse effects of development and/or neglect.”

If the proposed development will cause a loss of connectivity and habitat between World Heritage areas, it will damage the integrity of the World Heritage areas and affect its Outstanding Universal Values.

The impacts on the integrity of the World Heritage area need to be assessed in the context of the cumulative impacts of climate change. Many Australian ecosystems, including its World Heritage rainforest areas, are already being severely impacted by climate change. The cumulative impacts of climate change on these ecosystems include increased temperatures, reduced rainfall driving deeper winter droughts, and dramatically increased fire risk.

Hearing of the appeal

The appeal is expected to be heard in mid-2021 at Brisbane. It provides a good example of the complexity of planning appeals in practice.

Key documents

Development application

Documents for the MCU application lodged in 2018 for commercial water extraction and assessed by the Gold Coast City Council are available on the Council’s pdonline website at this link (or by searching for application number MCU201800495).

Key documents for the application include:

Note: a flora and fauna report for the site was submitted for a 2015 application to construct a house. That earlier report is available on the Council’s website at this link (or by searching the Council’s pdonline website for application number MCU201500573).

The Council’s planning scheme can also be accessed on its website, along with a map search to determine relevant zones and overlays applicable to the proposed development at this link (by searching for the property address, 263 Repeater Station Road, Springbrook).

P&E Court appeal

Documents for the appeal are available on the Queensland eCourt’s website (by searching for the case file number 137 of 2020) at this link.

Key documents include: