Questionable outcomes following recent vegetation clearing decision

The Planning and Environment Court’s determination in Fairmont Group Pty Ltd v Moreton Bay Regional [2018] QPEC 20, which held that ‘exempt clearing work’ can be made assessable under a planning scheme, is having wide-ranging impacts on all industries including resources, agriculture and development.

While the decision focused on vegetation characterised as Category X under the Vegetation Management Act 1999, the outcome may result in some unusual outcomes for all types of vegetation clearing.

Examples from the categories of ‘exempt clearing work’ defined under the Planning Regulation 2017 highlight the problem, as these types of clearing may now require a development approval if made assessable under a local government’s planning scheme (subject to assessment requirements otherwise prescribed under the Regulation). The examples include clearing:

• associated with an existing development approval for a material change of use or reconfiguring a lot;
• in declared disaster areas, that is necessary to prevent or minimise harm to people or property;
• for an activity permitted under the Fire and Emergency Services Act;
• for a relevant purpose under the Vegetation Management Act 1999 (such as public safety, fodder harvesting and pest control);
• for traditional purposes by Aboriginal or Torres Strait Islanders;
• for a resources activity as defined under the Environmental Protection Act 1994;
• for an activity under certain provisions of the Electricity Act and Regulation;
• for cadastral surveys, irrespective of purpose and size, to facilitate the survey being carried out; and
• associated with remediating contaminated land.

Before carrying out any vegetation clearing, including ‘exempt clearing work’, it is crucial to check both the Regulation and the planning scheme to ascertain whether a development approval is required. Clearing without an approval is an offence under the Planning Act 2016, with a maximum penalty of $567,675.

If you have any questions, please contact Leanne O’Neill on 3231 2571.