The case of Fairmont Group Pty Ltd v Moreton Bay Regional Council  QPEC 20 concerned an application to the Planning and Environment Court seeking declarations in relation to the Applicant's right to clear vegetation in the local government area of the Moreton Bay Regional Council (Council).
The Applicant commenced appeals in the Court against the Council's decision to refuse development applications for operational work comprising the clearing of vegetation on land in Morayfield.
Relevantly, the vegetation was within a category X area under the Vegetation Management Act 1999 and the clearing of the vegetation was categorised as follows:
(a) under the Moreton Bay Regional Council Planning Scheme 2016 (Planning Scheme) - as assessable development requiring a development approval; and
(b) under the Planning Regulation 2017 (Regulation) - as "exempt clearing work", being a form of vegetation clearing which was excluded from what was otherwise assessable development.
The appeals in respect of the refusal of the development applications were held in abeyance pending the determination of an application to the Court for the following declarations:
(a) that the proposed clearing of vegetation on freehold land within a category X area is categorised as "accepted development" under the Regulation and therefore no development permit was required; and
(b) to the extent that there is an inconsistency between the Regulation and the Planning Scheme, the Regulation must prevail over the Planning Scheme.
The Court dismissed the application on the basis that the proposed clearing was not categorised as "accepted development" under the Regulation and that, accordingly, the Planning Scheme was not inconsistent with the Regulation by categorising the proposed clearing as "assessable development" requiring a development permit.
Vegetation clearing, which is "exempt clearing work" (including the clearing of vegetation within a category X area), is not categorised as "accepted development" under the Regulation
Schedule 21 of the Regulation identifies the clearing of vegetation on freehold land within a Category X area, as was the case in this instance, as "exempt clearing work".
The Planning Act 2016 (Planning Act) identifies three categories of development, being:
(a) prohibited development - development for which a development application may not be made;
(b) assessable development - development for which a development approval is required; and
(c) accepted development - development for which a development approval is not required.
Section 44(6) of the Planning Act further states that if "no categorising instrument categorises particular development - the development is accepted development".
The Applicant submitted that Schedule 10 of the Regulation "carves out" of assessable development the exempt clearing work and, as such, stipulates what is assessable development and what is not assessable development and is therefore accepted development. The Applicant relied upon the following in support of its submission:
(a) that the clearing of freehold land within a category X area is "exempt clearing work" under Schedule 21 of the Regulation;
(b) that "exempt clearing work" is expressly excluded from the definition of prohibited development and assessable development; and
(c) that in accordance with section 44(6) of the Planning Act, the development must be accepted development by default.
Relevantly, the Applicant submitted that "in defining assessable development the Regulation refers to schedules 9 and 10 which (as already discussed) carve out of assessable the exempt clearing work. So the regulation not only tells us what is assessable development it also tells us what is not assessable development" (see ).
The Court rejected the Applicant's submission and stated that the exclusion of exempt clearing work for categorisation of clearing as prohibited or assessable development did not amount to the exempt clearing work being categorised as accepted development. Relevantly, the Court held as follows (see ):
“This submission overstates the position. The “carve out” only tells us what is not assessable development for the purpose of that particular item in that schedule”.
Planning Scheme is not prevented from categorising vegetation clearing as "assessable development" where it is "exempt clearing work" under the Regulation
The Applicant contended that to the extent there was an inconsistency between the Planning Scheme and the Regulation—being that the Planning Scheme categorised the vegetation clearing as "assessable development", whereas the Regulation categorised the vegetation clearing as "exempt clearing work", which was expressly excluded from being "assessable development"—the Regulation must prevail and the proposed clearing should be treated as defaulting to “accepted development”. The Applicant submitted that this position was supported by the Court’s decision in Traspunt No.4 Pty Ltd v Moreton Bay Regional Council  QPEC 49 (Traspunt Decision).
The Court differentiated the Traspunt Decision on the basis that it was decided under a different planning regime being the Sustainable Planning Act 2009, which specifically included a category of development called “exempt development”.
The Court confirmed that in accordance with section 43 of the Planning Act, either a Regulation or local categorising instrument, in this instance the Planning Scheme, could categorise development. Given that there was no inconsistency with the Regulation as the "carve out" argument had failed, the Court determined that the proposed clearing was assessable development under the Planning Scheme and would be a development offence under the Planning Act, if undertaken without the relevant development permit.
The Court therefore dismissed the application.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.