Clearing Vegetation a Complex Matter

Fairmont Group Pty Ltd v Moreton Bay Regional Council [2019] QCA 081

The Queensland Court of Appeal recently handed down a decision on vegetation clearing which will be important to any Council navigating this complex area.

In the case of, Fairmont Group Pty Ltd v Moreton Bay Regional Council [2019] QCA 081 the Court  found that because ‘exempt clearing work’ is not itself classified into one of the 3 types of development in the State’s planning legislation, it can be classified in a planning instrument, including a Council’s planning scheme.

This is interesting because the clearing of vegetation is usually regulated under the State’s planning legislation and the local planning scheme does not usually apply.

What does the law say?

Queensland’s vegetation management laws classify certain types of vegetation i.e. native trees or plants into categories. Those categories are then used to regulate whether vegetation can lawfully be cleared.

For example, the clearing of vegetation in a category X area is taken to be “exempt clearing work” under the planning legislation because it is operational work that involves the clearing of native vegetation.

Vegetation in a category X area refers to vegetation that is not significant for the purposes of the vegetation management laws.

Queensland’s planning laws also set out 3 types of development:

  1. Prohibited development –cannot be carried out;
  2. Assessable development – approvals are required; and
  3. Accepted development – developments may proceed without obtaining approval.

Under the Queensland planning laws, operational work that involves the clearing of native vegetation is classed as assessable development which means that an approval is required. However, an exception to this rule exists if the works falls within the definition of ‘exempt clearing work’ and in that case, no approval will be required.

What did the Court say?

In this case, Fairmont, a freehold owner of land at Morayfield wanted to clear vegetation on its land. The Landowner initially submitted development applications to the Council because we assume, it thought approval was required.  

The applications concerned the clearing of native vegetation within a category X area. The Council did not approve the applications.

Fairmont then appealed against the Council’s refusal of its applications to the Planning and Environment Court. However, during the course of the appeal, Fairmont then changed its position and subsequently decided that development applications were not necessary in the first place in relation to its proposed vegetation clearing.

Fairmont then made another application to the Planning and Environment Court for a declaration that the clearing of vegetation in a category X area on freehold land did not require a development permit under the State’s planning laws.  

Fairmont argued that the State’s planning laws must be interpreted to categorise ‘exempt clearing work’ as accepted development which can be done without obtaining approval. Council argued that this was not correct and that Council as a local authority could categorise exempt clearing work into a development type regulated under its local planning scheme. The Planning and Environment Court agreed with the Council.

Fairmont then appealed the decision to the Court of Appeal. The Court of Appeal also agreed with the Council and concluded clearing vegetation in a category X area, while it may be ‘exempt clearing work’ under the planning legislation, can be categorised as assessable development for which a development application is required under the local planning scheme.

If your Council requires guidance with this area of the Law, contact our Team today.

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