Court of Appeal finds error in law in the interpretation of "essential management" under the Sustainable Planning Regulation 2009

In brief

The case of Traspunt No 4 Pty Ltd v Moreton Bay Regional Council [2019] QCA 51 concerned an application for leave to appeal a decision of the Planning and Environment Court to the Queensland Court of Appeal. In the appeal, Moreton Bay Regional Council (Council) submitted that the Planning and Environment Court had erred in its finding that the proposed clearing work was within the definition of "essential management" on the basis that it involved the creation of firebreaks to protect "infrastructure". The Council further submitted that the Planning and Environment Court had made a second error of law in finding that the provisions of the 2005 Redcliffe City Planning Scheme (Planning Scheme) which categorised the proposed work as assessable development was invalid as it was inconsistent with the Sustainable Planning Regulation 2009 (SPR). 

Traspunt No 4 Pty Ltd (Applicant) submitted that the Planning and Environment Court had erred in its finding that the proposed clearing work on the southern and western boundaries of the relevant land was not essential management. 

The Court of Appeal held that all of the proposed clearing work on the land was assessable development as prescribed under the SPR and the Planning Scheme. The Court of Appeal granted Council leave to appeal and allowed the Council's appeal. The Court of Appeal additionally granted the Applicant leave to appeal but dismissed the Applicant's appeal. 

Previous decision of the Planning and Environment Court

The Applicant submitted a development application for a development permit to clear vegetation on two parcels of freehold land located at Rothwell. The Council refused the development application and the Applicant subsequently appealed this decision to the Planning and Environment Court.

The Planning and Environment Court held that the proposed clearing work on the northern and eastern side boundaries of the land was "essential management" under the SPR, and therefore did not require the Council's approval. The Planning and Environment Court found the purpose of the proposed clearing work was to establish or maintain a necessary firebreak to protect "infrastructure" which was identified, by the Planning and Environment Court, to be the residential development to the north and east of the subject land.

The Planning and Environment Court found in favour of the Council for the proposed clearing work along the southern and western boundaries of the land and held the proposed clearing work was for the purpose of protecting fences which was expressly excluded from the definition of "essential management" under the SPR and was therefore assessable development. 

The Planning and Environment Court considered whether there had been a deemed approval of the development application, but found the Applicant did not have the benefit of a deemed approval as it was a vegetation clearing application under the Vegetation Management Act 1999, which was expressly excluded from the deeming provisions.

In considering the merits of the application, the Planning and Environment Court held there were insufficient grounds to justify the approval of the development application despite the conflict, as it conflicted with the Natural Features or Resource Overlay Code of the Planning Scheme. 

The Applicant and the Council both sought leave to appeal to the Court of Appeal against the decision of the Planning and Environment Court, on the basis that each party alleged that it should have succeeded entirely and that the Planning and Environment Court had made errors of law in reaching its decision. 

Interpretation of infrastructure in relation to essential management 

The SPR relevantly provides that "essential management" is "clearing native vegetation for establishing or maintaining a necessary firebreak to protect infrastructure other than a fence, road or vehicular tracks, watering facilities and constructed drains other than contour banks, other than to source construction material…". The Sustainable Planning Act 2009 (SPA) states that infrastructure "includes land, facilities, services and works used for supporting economic activity and meeting environmental needs". 

The Council submitted the Planning and Environment Court had erred in its finding that the proposed clearing work was within the definition of "essential management" on the basis it involved the creation of firebreaks to protect "infrastructure". The Council submitted that residential housing did not fall within the definition of "infrastructure" in the context of the SPR as it is not relevant to the definition of "infrastructure" provided under the SPA. The Council further argued that residential housing is not included even when considering the ordinary meaning of "infrastructure".

The Applicant submitted the Planning and Environment Court was correct finding the work was essential management, and residential housing constituted infrastructure in the ordinary meaning of the word. 

The Court of Appeal found that the definition of "infrastructure" as provided under the SPA applied to the SPR by application of section 37 of the Statutory Instruments Act 1992. Relevantly, the Court of Appeal held residential housing was not "infrastructure" in the context of "essential management". The Court of Appeal found that the Council had demonstrated that there was an error of law in the Planning and Environment Court's conclusion that the proposed clearing work on the northern and eastern boundaries of the land was "essential management" as defined under the SPR.   

The Court of Appeal further considered the Council's argument that the work was assessable development by the operation of the Planning Scheme. The Court of Appeal held the Planning and Environment Court had erred in its conclusion that the provisions of the Planning Scheme which categorised the proposed work as assessable development were invalid on the basis that they were inconsistent with the SPR. The Court of Appeal held that the absence of the SPR prescribing the clearing work as assessable development did not mean that the Planning Scheme could not prescribe the clearing work as assessable development. 

Maintaining fences not to be classified as essential management

The Applicant argued the Planning and Environment Court had erred in its finding that the proposed clearing work on the southern and western boundaries of the land was assessable development as it was necessary to maintain fences, and therefore "infrastructure" on the boundaries as provided under the definition of "essential management" in Schedule 26 of the SPR. 

The Court of Appeal disagreed with the Applicant and held that when reading the definition of "essential management" as a whole, the maintenance of infrastructure would involve work that is done to the infrastructure itself. The Court of Appeal found that if the maintenance of the infrastructure included the construction of a firebreak to protect the infrastructure, it would cause a considerable overlap between the categories under the definition of "essential management", and would cause unavoidable tension between the two. Consequently the Court of Appeal held that the Planning and Environment Court's finding that the work on the southern and western boundaries of the land was not essential management was correct. 

Conclusion

The Court of Appeal concluded all of the work was assessable development as prescribed under the SPR and the Planning Scheme. The Court granted the Council leave to appeal and allowed the Council's appeal. The Court granted the Applicant leave to appeal but ultimately dismissed the Applicant's appeal. The Court remitted the proceeding to the Planning and Environment Court for further consideration and orders.