A large development proposed for Toondah Harbour in Brisbane’s Moreton Bay – a Ramsar-protected wetland – would have significant impacts on many vulnerable species, including the harbour’s globally migratory birds, its turtles, dugongs and koalas.
UPDATE: The period for public comment on Walker Group Holdings’ draft EIS closed on 6 December 2022. Walker Group must now finalise its EIS within a reasonable period.
EDO has been working with local community and environment groups since the waterfront development – for residential, retail, marina, hotel, port facilities and tourism infrastructure – was first proposed in 2015.
EDO represented Redlands 2030 in the Queensland Civil and Administrative Tribunal regarding Right to Information access to a key agreement between the state government, the developer and Redland Council. This agreement contains a confidentiality clause, but is crucial for understanding the claimed community benefit as the basis for public money expenditure on the damaging proposed project. On 8 February 2021, QCAT heard the developer and State Government’s appeals against the Office of Information Commissioner’s 2018 decision to release the agreement, with our client arguing the decision was correct. In essence, QCAT was asked to determine the scope of the RTI Act’s confidential information exemption, which allows such information to be withheld from release. On 9 April 2021, Judicial Member McGill SC decided to allow the appeals and found confidentiality could remain. Disappointingly, in July his Honour also decided it to be ‘in the interests of justice’ to go against the normal rule in QCAT of parties bearing their own costs, and awarded costs against Redlands2030. As the ABC reported, EDO’s view is that the operation of such confidentiality clauses in private developer-government contracts results in no transparency of purported public benefits of such projects, as against environmental and other public costs.
EDO is also advising clients about the ongoing Federal assessment of the project, various other approval processes and potential law reform to improve protection of the Ramsar site.
The Toondah development was proposed as part of a Priority Development Area (PDA) declaration made in 2013 under the Economic Development Act 2012 (Qld). The PDA includes part of the internationally-listed wetlands.
Following a competitive tender process, Walker Group Holdings was selected as the developer (see the development proposal). For a more detailed history of the project, see Redlands2030’s account on its website.
A key impediment to the proposed Toondah Harbour development is approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). This is because the EPBC Act requires that the Minister must not act inconsistently with Australia’s obligations under the Ramsar Convention when deciding whether or not to approve an action under section 138 of the EPBC Act. Relevantly, these obligations include not to delete or restrict a Ramsar boundary unless it is in our urgent national interests.
We understand that the Government received legal advice in relation to amending the boundary of the Ramsar Wetland, so that parts of the proposed action would no longer fall within the Ramsar Wetland. The legal advice rightly advised that Article 2.5 of the Ramsar Convention on Wetlands (‘Ramsar Convention’) states that the boundary of a Ramsar wetland may only be deleted or restricted if it is in the “urgent national interest”. Given the proposed Toondah development is a private commercial proposal, it cannot be considered to be in the “urgent national interest”, and its boundary cannot, therefore, be properly deleted or restricted under the Ramsar Convention.
Approvals needed for Toondah Harbour Development
A number of key approvals are likely to be required for the development. These include:
- Federal environmental approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act);
- Priority Development Area development approval under the Economic Development Act 2012 (ED Act);
- Marine Parks Permits under the Marine Parks (Moreton Bay) Zoning Plan 2008 (Qld) and the Marine Parks Act 2004 (Qld) framework which include:
- Amendment of the Moreton Bay Zoning Plan to declare a designated works area;
- Revocation of part of the Moreton Bay Marine Park;
- Permission for reclamation;
- Environmental authority for dredging under the Environmental Protection Act 1994 (Qld);
- Allocation of resource under the Coastal Protection and Management Act 1995 (Qld); and
- Approvals outside the Priority Development Area.
Federal Government EPBC referral
The proponent has referred three variations of the project to the Commonwealth Minister for the Environment under the EPBC Act. The first was withdrawn in May 2017. The other two proposals are:
- EPBC reference 2017/7939: In June 2017, the 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 the 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 it was a controlled action to be assessed by environmental impact statement (‘EIS’). After public consultation, the guidelines for preparing the EIS were finalised. Walker Group must publish its draft EIS with the Minister’s approval and invite persons to comment on the draft EIS within a specified period of not less than 20 business days. The Minister may seek public comment on a proposed final decision on whether or not to approve the development.
Walker Group Holdings published its draft EIS, in relation to EPBC reference number 2018/8225, for public comment from 12 October 2022 to 6 December 2022.
Following 6 December 2022, Walker Group must finalise its draft EIS by:
(a) taking into account any comments received within the period for comment; and
(b) including a summary of any such comments and how those comments have been addressed.
As soon as practicable after finalising the EIS, Walker Group Holdings must give the Minister the finalised EIS and a copy of any comments received within the period for public comment.
Walker Group Holdings must publish the EIS given to the Minister within 10 business days.
Queensland Priority Development Area planning process
The declaration of a PDA is a method for fast tracking and concentrating development where this is seen as necessary by 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.
The Queensland Government has the power to revoke or reduce a PDA. This could be an option to exclude those parts of the PDA on, and reduce the impacts to, the Ramsar wetland.
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.
You can find more general information here: