In an extraordinary decision with wide-ranging impacts, the Planning and Environment Court has determined that a development approval may be required to clear Category X land, notwithstanding that it is ‘exempt clearing work’ under the Planning Regulation 2017 (Regulation).

Contrary to the widely held view that Category X land can be cleared as of right under both the Vegetation Management Act 2009 and the Planning Act 2016 (Planning Act), the Court found that a local government planning scheme can make the clearing assessable development, despite the Regulation providing that exempt clearing work is not assessable development.

In practice, this means that clearing Category X land for any purpose will require a development approval, unless it is specifically excluded from assessment requirements for vegetation clearing under a planning scheme. Further, none of the ‘Accepted Development Clearing Codes’, which allow as of right clearing for particular uses (such as agriculture and extractive industry), apply to Category X land.

If you intend to clear Category X land, you must determine whether a development approval is required under the relevant local government planning scheme. Clearing without an approval is an offence under the Planning Act, with a maximum penalty of $567,675.