Judicial, policy and legislative pronouncements to be aware of in the vegetation clearing space

1. Developing InSight
16 May 2018
Vegetation clearing laws under the spotlight
Key developments
The past month has been a busy time in the
vegetation clearing space, with the following
judicial, policy and legislative pronouncements
to be aware of—
▪ The Planning and Environment Court
decision in Fairmont Group Pty Ltd v
Moreton Bay Regional Council [2018] QPEC
20 on 20 April 2018.
▪ Publication of the Koala Expert Panel: A new
direction for the conservation of koalas in
Queensland report and Queensland
Government Koala Conservation Response
on 4 May 2018.
▪ The commencement of the Vegetation
Management and Other Legislation
Amendment Act 2018 on 9 May 2018 – but
beware some provisions operate
retrospectively back to 8 March 2018.
‘Exempt clearing work’ in the Planning
Regulation may still be assessable
development under a planning scheme
The relationship between the Planning Regulation
2017 and planning schemes was examined in the
recent decision of the Planning and Environment Court
in Fairmont Group Pty Ltd v Moreton Bay Regional
Council [2018] QPEC 20.
In short, the Court held that:
▪ The limited effect of ‘exempt clearing work’ as
defined in the Planning Regulation (being clearing
of native vegetation listed in its schedule 21) is that
it is not prohibited or assessable development for
the purposes of the Planning Regulation only.
▪ The local government may still categorise what is
‘exempt clearing work’ under the Planning
Regulation as assessable development under the
planning scheme. The absence of ‘exempt clearing
work’ from the list of development in schedule 6 of
the Planning Regulation (the schedule that lists
development that a local categorising instrument is
prohibited from stating is assessable development)
is telling.
So, in Fairmont, although the proposed clearing was in
a category X area (‘exempt clearing work’ under the
Planning Regulation, being listed in schedule 21 part 2
section 2(d)) and was not assessable development
under the Planning Regulation, it was assessable
development under the Moreton Bay Regional
Planning Scheme 2016 requiring a development
approval from the Council.
Her Honour Judge Kefford noted the decision in
Traspunt No. 4 Pty Ltd v Moreton Bay Regional
Council [2015] QPEC 49 involved a different legislative
regime so was not of assistance in this case.
An example of development that is not assessable
development under the Planning Regulation and is also
prevented from being made assessable development
under a planning scheme is amalgamation of 2 or more
lots. This is because it (along with certain other types
of reconfiguring a lot) appears both in schedule 6 (Part
4 section 21(2)(b)) (unlike exempt clearing work) and is
carved out from being assessable development
pursuant to schedule 10 part 14 division 1 section
21(a). The legislative framework under the repealed
Sustainable Planning Act 2009 was substantially the
same in this respect.
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Publication of the Koala Expert
Panel report and Government response
The Koala Expert Panel: A new direction for the
conservation of koalas in Queensland report and
Queensland Government Koala Conservation
Response was released earlier this month. The Expert
Panel’s report, the core of which is the urgent need for
‘a more coordinated and strategic approach to koala
conservation in South East Queensland’ contains,
among six recommendation areas:
1. Better, broader priority area mapping – The
Expert Panel recommends State identification of
broad-scale priority areas for koalas across SEQ
rural and urban landscapes, that is broader than the
existing PKADA and KADA mapping.
2. Stronger legislation in relation to development
assessment – including recommended
amendments to:
▪ Identify the State as either the assessment
manager or referral agency for all koala-related
assessable development.
▪ Include a koala-related assessment code in the
State Development Assessment Provisions.
▪ Provide for standard conditions for development
impacting on koalas, coupled with consideration
to be given to Planning Act 2016 amendments to
prevent challenge to koala-related conditions on
reasonableness/relevance grounds.
▪ Broaden triggers for koala-related development
assessment in SEQ, including in identified
priority areas whether inside or outside the
Urban Footprint and inside the Urban Footprint if
within an area mapped as core koala habitat
(even if outside a priority area).
▪ Reduce the number and complexity of
exemptions in the Planning Regulation schedule
21 – specific mention is made of the urban
purposes in urban areas exemption. This was
stated on the basis that it is not assessable
development under the Planning Act and cannot
be made assessable by a planning scheme;
however note now the benefit of the Fairmont
decision.
We will be publishing a more detailed Developing
InSight on this soon.
Commencement of amendments to
vegetation clearing laws
The Vegetation Management and Other Legislation
Amendment Act 2018 has been enacted. Our earlier
Developing InSight Vegetation clearing changes back
on the agenda gave an overview of the key changes
proposed by the Bill. Most of the Act’s provisions
(which amend the Vegetation Management Act 1999
(VMA), Planning Act, Planning Regulation and Water
Act 2000) commenced on 9 May 2018.
Beware that the following provisions have retrospective
effect, taken to have commenced on 8 March 2018:
▪ Insertion of new VMA section 19S. The effect of this
provision is that a notice about intended clearing or
a native forest practice under an accepted
development vegetation clearing code ceases to
have effect when the Minister revokes or replaces
the code and the activity cannot continue to be
carried out under the revoked or replacement code.
A new notice is required.
▪ Amended ‘area management plan’ provisions in
VMA part 2 division 5B.
▪ Amendment of VMA section 22A to provide that a
vegetation clearing application is not for a relevant
purpose if the development is clearing in a category
C area (high value regrowth vegetation) on freehold
land, indigenous land or the subject of a Land Act
1994 lease for agriculture or grazing purposes or an
occupation licence under that Act.
▪ Transitional provisions.
The new VMA provisions regarding enforceable
undertakings (new part 4 division 5) the subject of our
earlier Developing InSight Vegetation clearing changes
to enforcement are not yet in effect – they will
commence on a date that is yet to be fixed.
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