Fairmont Group Pty Ltd v Moreton Bay Regional Council

Fairmont Group Pty Ltd challenged a decision by the Moreton Bay Regional Council to refuse approval for the clearing of vegetation, claiming that no approval was required. The applicant sought declarations from the Planning and Environment Court that the approval was not needed. The primary judge held that the proposed clearing work constituted assessable development, thereby requiring approval. The court had to determine whether the Planning Regulation 2017 (Qld) applied instead of the planning scheme under section 34(4) of the Planning Act 2016 (Qld) and whether the primary judge erred in categorising the proposed clearing works as assessable development.

The applicant argued that the proposed work was accepted development and approval was not required, contending that the proper interpretation of section 20 of the Planning Regulation was to categorise exempt clearing work as accepted development. The respondent maintained that the proper interpretation of the Planning Regulation left open the categorisation of exempt clearing work to the planning schemes, which categorised the proposed clearing work as assessable development. The court found that section 18 of the Regulation did not expressly define all types of accepted development, but rather incorporated schedule 7 as being included within accepted development, which includes operational work for clearing native vegetation. This work is considered accepted if it complies with an accepted development vegetation clearing code, which is defined by reference to the Vegetation Management Act. The court concluded that clearing vegetation, which is regulated under the Vegetation Management Act, is not a matter for local councils. Furthermore, the court found that exempt clearing work cannot fit into the category of prohibited development.

The court granted leave to appeal but dismissed the appeal with costs. The primary judge's decision that the proposed clearing work constituted assessable development, and therefore approval was required, was upheld. The applicant's contention that the Planning Regulation applied instead of the planning scheme and that the primary judge erred in categorising the proposed clearing works as assessable development were rejected. The court held that exempt clearing work cannot be categorised as prohibited development and, as such, the primary judge's decision was correct.