Court of Appeal Result Challenges Exempt Clearing on Category X Land

A decision last year by the Queensland Planning and Environment Court (P&E Court) determined that clearing of State mapped Category X native vegetation required development approval under a local government Planning Scheme. That decision has now been upheld by the Court of Appeal. Under the Planning Regulation 2017 (the Regulation), the clearing of native vegetation mapped as Category X on the Regulation Vegetation Management Map is exempt clearing work (Schedule 21, Part 2 of the Regulation). It has always been the case that the mapping of Category X (or non-remnant vegetation) on land allowed landholders as of right clearing under the Vegetation Management Act 1999 (VM Act) and the Planning Act 2016 (including now superseded legislation). However, the recent decision and appeal result means that landholders and project managers should check whether a development approval (for example Operational Work) is required under the relevant local government Planning Scheme to clear native vegetation mapped as Category X.
The P&E Court decision is a massive issue for landholders, further muddying the waters regarding how vegetation clearing can be legally conducted. It is a good opportunity for landholders and project developers to remind themselves of their obligations under all levels of government legislation to ensure that they remain compliant. Some examples of where clearing on Category X land may trigger other approvals are provided as follows:
  • the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) regulates impacts to matters of national environmental significance (MNES). If an action (eg. vegetation clearing) will have or is likely to have a significant impact on a MNES, then the proponent of the action must refer the action to the Commonwealth Minister for the Environment. A MNES includes places such as World Heritage Areas, Ramsar wetlands and threatened species and ecological communities. Importantly, some threatened species or ecological communities can occur within vegetation mapped as Category X.
  • Local laws may protect vegetation identified as Category X. For example, residents within Brisbane City must comply with the Natural Assets Local Law 2003 (NALL). The NALL protects significant trees or groups of trees and vegetation within waterways and wetlands and generally requires a permit to remove. This vegetation can include areas that are mapped as Category X.
icubed consulting is a development consultancy with a highly experienced planning and environment team including town planners and environmental scientists/ecologist. This combined with our civil and structural engineering teams, provides an advantage to our clients.
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(Note: “Colour scheme used to denote protected vegetation on regulated vegetation management maps.”)

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