Landholders beware – Court of Appeal confirms the fate of clearing Category X vegetation in Queensland

In a split judgment 2:1, the Court of Appeal has confirmed the Planning and Environment Court’s decision that a local government’s planning scheme can make clearing Category X vegetation assessable development. This is despite the Planning Regulation 2017 providing that clearing Category X vegetation is ‘exempt clearing work’.

This is contrary to the widely held view based on government documents and publications that Category X vegetation can be cleared ‘as of right’ under both the Vegetation Management Act 2009 and Planning Act 2016 (including its predecessors).

This decision has wide-ranging implications for landholders clearing not only Category X vegetation, but other clearing categorised as ‘exempt clearing work’, which may now trigger the need for a development permit. This includes clearing:

• associated with an existing development approval for a material change of use or reconfiguring a lot
• in declared disaster areas, which is necessary to prevent or minimise harm to people or property
• for traditional purposes by Aboriginal or Torres Strait Islanders
• associated with remediating contaminated land.

Landholders who have ‘locked-in’ the status of vegetation through a Property Map of Assessable Vegetation (PMAV) on their land need to be aware that Category X vegetation may now be subject to a higher level of assessment compared to other regulated vegetation categories, such as Category B or C. This is because other categories have the benefit of ‘Accepted Development Clearing Codes’ allowing the clearing of vegetation. However, none of the ‘Accepted Development Clearing Codes’ apply to Category X vegetation.

Moving forward, landholders must check both the Planning Regulation and the relevant planning scheme to ascertain whether a development approval is required before carrying out vegetation clearing in Queensland.

Any landholders, including developers and pastoralists, who have cleared vegetation (including for operational works) may have breached the provisions of a planning scheme and risk prosecution for the offence of unlawful clearing, which carries a maximum penalty of $587,475 under the Planning Act.

If you have previously cleared vegetation in reliance upon the Category X exemption, we recommend that you review these actions and if you have any questions, please contact Leanne O’Neill, Special Counsel, on 3231 2571.