Key issues:

  • The Queensland Court of Appeal has recently confirmed that clearing category X vegetation is not accepted development under the Planning Regulation 2017 and may still require a development approval under a local government planning scheme.
  • The decision provides a timely reminder that planning schemes can capture forms of development that are either not captured by the Planning Regulation, or are not made assessable development under the Planning Regulation.
  • In determining whether your proposed clearing requires approval, it is necessary to have reference to both the Planning Regulation and any relevant categorisation under a planning scheme.

The Queensland Court of Appeal has recently confirmed that clearing category X vegetation, commonly termed “exempt clearing work”, is not accepted development under the Planning Regulation 2017 (Planning Regulation) and may still require a development approval under a local government planning scheme.

The decision in Fairmont Group Pty Ltd v Moreton Bay Regional Council [2019] QCA 81, upheld the original decision made by the Planning and Environment Court (P&E Court).

As we discussed in our earlier article, this case provides a timely reminder that planning schemes can capture forms of development that are either not captured by the Planning Regulation, or are not made assessable development under the Planning Regulation.

In this case, vegetation that is determined to be exempt clearing work by the State can still be regulated by a planning scheme which may require a development approval to clear the vegetation.

The vegetation regulatory framework

The Planning Act 2016 (Planning Act) nominates three categories of development:

  1. prohibited development;
  2. assessable development; and
  3. accepted development.

An approval is required for assessable development, but not for accepted development. Prohibited development, as the name suggests, cannot be undertaken on land. A categorising instrument, which includes the Planning Regulation and a planning scheme, can nominate particular development to be one of these three categories of development.

Under the Planning Regulation, operational work that is clearing native vegetation is assessable development. An exception to this rule is if the clearing works fall within “exempt clearing work”, which includes clearing mapped ‘category X vegetation’ under the State government’s regulated vegetation management maps. Exempt clearing work is categorised as being neither ‘prohibited development’ nor ‘assessable development’.

Under the Moreton Bay Planning Scheme 2016, the clearing of native vegetation was also made assessable development, for which an approval was required.

So in this case, the vegetation was regulated by the State under the Planning Regulation, but an exception applied, and the same vegetation was also regulated by the Council under its planning scheme.

Fairmont’s argument

The developer’s position was that, because the clearing work was defined as exempt clearing work under the Planning Regulation, it must be ‘accepted development’ for the purposes of the Planning Regulation, and in those circumstances no development approval was required under the Planning Regulation or the Council planning scheme.

Court of Appeal

The Court of Appeal upheld the P&E Court’s original decision. There was nothing in the Planning Act or Planning Regulation which evidenced a purpose that supported the developer’s case. The Planning Regulation or a local government planning scheme could categorise the clearing work as assessable development. As McMurdo JA said:

“The Regulation did not have to categorise each and every type of development, and it did not do so in the case of exempt clearing work. It left the door open to another categorising instrument to do so, as occurred by the terms of the planning schemes. By that means, it became categorised as assessable development.”

Takeaway

This case demonstrates the primacy of local government planning instruments in the regulation of vegetation. Planning schemes in most local government areas will regulate vegetation that might otherwise be ‘exempt clearing work’ work at the State level.

In determining whether your proposed clearing requires approval, it is necessary to have reference to both the Planning Regulation and any relevant categorisation under a planning scheme.

Finally, as a further complication, a number of local governments will also regulate vegetation clearing through local laws, which must be considered in addition to the Planning Regulation and a planning scheme.