Case note – Fairmont Group Pty Ltd v Moreton Bay Regional [2018] QPEC 20

Background

Fairmont Group Pty Ltd sought declarations about its right to clear land identified as ‘Category X’ under the Vegetation Management Act 1999 (Qld)  (VMA) (land that is not otherwise identified as containing any significant vegetation for the purposes of the VMA).

The Court was asked to determine whether the clearing, which was identified as ‘exempt clearing work’ under the Planning Regulation 2017 (Regulation), was accepted development under the Planning Act 2016 (Qld) (Planning Act). If so, this would mean that no development permit would be required to clear the land.

It was common ground that, under the Regulation, ‘exempt clearing work’ is neither prohibited nor assessable development.

What was in dispute was whether the clearing was ‘accepted development’ under the Regulation, and whether the Moreton Bay Regional Council Planning Scheme 2016 (MBRC Planning Scheme) was capable of categorising the clearing of Category X land as assessable development.

Summary of Fairmont’s case

The Planning Act provides that development is either prohibited, assessable or accepted development. Development that is not otherwise categorised is accepted development (section 44).

As the Regulation provides that the development was neither prohibited (schedule 10) nor assessable development, Fairmont contended that, by default, ‘exempt clearing work’ must be accepted development under the Regulation.

While the MBRC Planning Scheme purported to make the proposed clearing work ‘assessable development’, the Planning Act provides that, where there is any inconsistency between the Regulation and a local categorising instrument (in this case the MBRC Planning Scheme), the local categorising instrument is of no effect. As such, the Regulation prevailed and the proposed clearing was accepted development.

This contention was consistent with the Court’s decision in Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2015] QPEC 49, albeit that that was a decision made under the now repealed Sustainable Planning Act 2009 (SPA).

Summary of the Council’s case

The Council contended that the absence of an express categorisation of ‘exempt clearing work’ as either prohibited or assessable development did not mean that it was accepted development under the Regulation.

Given that the Regulation or a local categorising instrument could categorise the development, the Council argued the door was left open for the MBRC Planning Scheme to categorise the proposed vegetation clearing as assessable development.

As such, there was no inconsistency between the MBRC Planning Scheme and the Regulation, and the proposed clearing was assessable development under the MBRC Planning Scheme.

Summary of findings

In dismissing Fairmont’s application, her Honour Judge Kefford determined it was open to the Council to make vegetation clearing assessable development under the MBRC Planning Scheme, notwithstanding that it was ‘exempt clearing work’ under the Regulation.

Her Honour’s reasoning can be summarised as follows:

• The Planning Act contemplates that either a Regulation or local categorising instrument can categorise development as prohibited, accepted or assessable development.
• As ‘exempt clearing work’ is not made prohibited or assessable development under the Regulation, it is open to another local categorising instrument to make it assessable development.
• The default presumption that development not otherwise categorised is accepted development is only triggered where there is no categorising instrument that categorises the development.
• The Traspunt decision is distinguishable, as it was made under SPA, which had a category of development called ‘exempt development’.
• Accordingly, there is no inconsistency between the MBRC Planning Scheme and the Regulation.

Conclusions and observations

The decision has significant impacts for all areas of land use, including development, agribusiness and extractive industries.

It is contrary to the widely held view that Category X land can be cleared as of right under both the VMA and the Planning Act – a view supported by State Government publications relating to vegetation clearing, and the fact that Category X areas are those areas that are not identified as containing significant environmental values under the VMA.

Under the Regulation, vegetation clearing is only accepted development when it complies with ‘an accepted development vegetation clearing code’. Such codes exist for a range of purposes, including extractive industry, agricultural purposes and property infrastructure in rural areas. However, none of the codes apply to Category X land. This produces an unusual outcome where (for example) clearing native vegetation for fodder harvesting in certain Category B areas (which are areas containing remnant vegetation or other significant ecosystems) is accepted development but the same use on Category X land, which is not mapped as containing significant environmental values under the VMA, may require a development permit.

In practice, this means clearing Category X land for any purpose will require a development approval where a relevant planning scheme provides the proposed clearing is assessable development that is not otherwise excluded from assessment under the planning scheme.

Given the wide-ranging and adverse impact on industry, and the unusual outcomes that flow from this decision, it seems unlikely that this was the intent of the legislature.

In any event, landowners can no longer assume that Category X land can be cleared. First, they must determine whether the clearing is assessable under a planning scheme. Where clearing is made assessable, a development application must be made, assessed and approved before clearing can occur. Clearing without a development approval is an offence under the Planning Act, with a maximum penalty of $567,675.

If you have any queries, please contact Leanne O’Neill on 07 3231 2571 or at [email protected].