Fairmont Group Pty Ltd v Moreton Bay Regional Council [2018] QPEC 20

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Fairmont Group Pty Ltd v Moreton Bay Regional Council [2018] QPEC 20 PARTIES: FAIRMONT GROUP PTY LTD ACN 138 546 871 (Applicant) v MORETON BAY REGIONAL COUNCIL (Respondent) FILE NO/S: 4816 of 2017 DIVISION: Planning and Environment PROCEEDING: Originating Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 20 April 2018 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 20 April 2018 JUDGE: Kefford DCJ ORDER: The application for declarations is dismissed. CATCHWORDS: PLANNING AND ENVIRONMENT – APPLICATION – DECLARATORY PROCEEDINGS – where the applicant wishes to clear vegetation – where the vegetation is category X vegetation under the Vegetation Management Act 1999 – where the land is freehold land – whether clearing of vegetation on freehold land that is identified as category X under the Vegetation Management Act 1999 is accepted development for the Planning Act 2016 – whether a planning scheme can make operational work for clearing category X vegetation assessable development LEGISLATION: Planning Act 2016 (Qld), s 43, s 44 Planning Regulation 2017 (Qld), s 16, s 18, s 19, s 20, sch 6, sch 7, sch 10 CASES: Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628, applied Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2015] QPEC 49; [2015] QPELR 972, not followed COUNSEL: C L Hughes QC and H Stephanos for the Applicant -- 1 of 15 -- 2 B D Job QC and M Batty for the Respondent SOLICITORS: Cooper Grace Ward for the Applicant Moreton Bay Regional Council for the Respondent TABLE OF CONTENTS Introduction .......................................................................................................................... 2 Relevant legislative context.................................................................................................. 5 The accepted development point .......................................................................................... 7 The inconsistency point ...................................................................................................... 14 Conclusion .......................................................................................................................... 15 Introduction [1] Fairmont Group Pty Ltd, the Applicant, seeks declarations about its right to clear vegetation on land at Morayfield. [2] The dispute between the parties is whether operational work, being the clearing of category X vegetation on freehold land, i.e. clearing that is defined as exempt clearing work in the Planning Regulation 2017, is accepted development under the Planning Regulation. If it is accepted development, no development permit is required. [3] Council contends that to the extent that the clearing proposed by the Applicant is exempt clearing work, it is not accepted development; rather it is assessable development under the Moreton Bay Regional Council Planning Scheme 2016, for which a development approval is required. [4] In its written outline,1 Council submits that the fate of the Originating Application turns on the applicant establishing four propositions, namely: (a) the vegetation to be cleared is included in the category X vegetation category area for the purposes of the Vegetation Management Act 1999 (Qld); (b) the Planning Regulation 2017 categorises the clearing of vegetation in a category X vegetation category area as accepted development under the 1 Outline of Submissions on behalf of the Respondent – Court Doc 13 pp 1-2 [3]. -- 2 of 15 -- 3 Planning Act 2016 and, as such, no development approval is required (“the accepted development point”); (c) an unidentified local planning scheme purports to categorise the same development stated in paragraph (b) above as assessable development (“the same development point”); and (d) points (b) and (c) give rise to an inconsistency in the categorisation of development, which is resolved in favour of the Planning Regulation 2017 by operation of s 43(4) of the Planning Act 2016 in favour of the Planning Regulation 2017 (“the inconsistency point”), meaning the vegetation clearing proposed by the Applicant is treated as accepted development for which no development approval is required. [5] Council submits, in its written outline, that the Applicant must establish each of those four propositions to succeed in the proceeding. [6] At the outset of the hearing, it was accepted by Counsel for the Applicant that it cannot succeed in the proceeding if clearing for exempt clearing work, as that term is defined in the Planning Regulation 2017, is not accepted development under the Planning Regulation 2017. Background [7] The Applicant originally submitted two development applications on 28 January 2016, which applications: (a) sought approval for operational work (vegetation clearing); (b) concerned the clearing of vegetation that fell within category X; and (c) identified that development as being code assessable. [8] These development applications were ultimately refused on the basis of the alleged conflict with either or both the Caboolture Shire Plan and the Moreton Bay Regional Planning Scheme 2016. [9] The Applicant appeals against the refusal of each development application in Appeal 2812 of 2017 and 2813 of 2017. -- 3 of 15 -- 4 [10] During the course of preparation for those appeals, the Applicant has reconsidered its position and concluded that the development applications had not been necessary, as a matter of fact and law. Undisputed facts [11] There is no factual dispute that needs determination in order to deal with this proceeding. It is common ground that: (a) the land the subject of this proceeding is freehold land; (b) the vegetation proposed to be cleared includes native vegetation, and it is the native vegetation that is the subject of the dispute; (c) the vegetation proposed to be cleared by the Applicant is in a category X area under the Vegetation Management Act 1999; (d) schedule 7, part 3, item 12 of the Planning Regulation 2017 does not apply in the present case; (e) schedule 21, part 1 of the Planning Regulation 2017 does not apply in the present case; (f) the second limb (i.e. sub-paragraph (b)) of the definition of exempt clearing work does not apply in the present case; and (g) the proposed clearing, to the extent it involves native vegetation, is exempt clearing work as defined in the Planning Regulation 2017 in that it is clearing stated in schedule 21, part 2 for the land. [12] It is also common ground that, to the extent the proposed clearing is exempt clearing work: (a) it is not prohibited development under s 19 and schedule 10, part 3, division 1, item 4 of the Planning Regulation 2017; and (b) it is not assessable development under s 20(1) and schedule 10, part 3, division 2, item 5 of the Planning Regulation 2017. -- 4 of 15 -- 5 [13] There also appears to be no dispute that the Moreton Bay Regional Planning Scheme 2016 at least purports to categorise “Clearing vegetation, not associated with a material change of use or reconfiguring a lot” as assessable development that requires code assessment if it is not in the limited development zone and does not comply with the circumstances for accepted development. Relevant legislative context [14] The Planning Act 2016 provides a system of land use planning and development assessment for Queensland. [15] For the purposes of the Planning Act 2016, schedule 2 defines “development” to include “operational work”, which is defined to mean: “Work, other than building work or plumbing or drainage work, in, on, over or under premises that materially effects premises or the use of premises.” [16] Section 44 of the Planning Act 2016 nominates three categories of development, namely: (a) prohibited development, being development for which a development application may not be made; (b) assessable development, being development for which a development approval is required; and (c) accepted development, being development for which a development approval is not required. [17] Pursuant to section 44(5) of the Planning Act 2016, “[a] categorising instrument may categorise development”. This provision is permissive in nature. A categorising instrument is not required to categorise every form of development, but it may elect to do so. [18] Section 44(6) of the Planning Act 2016 stipulates that if no categorising instrument categorises particular development, the development is accepted development. -- 5 of 15 -- 6 [19] Section 43 of the Planning Act 2016 identifies the instruments that categorise development for the purposes of the Act. It relevantly provides: “43 Categorising instruments (1) A categorising instrument is a regulation or local categorising instrument that does any or all of the following— (a) categorises development as prohibited, assessable or accepted development; (b) specifies the categories of assessment required for different types of assessable development; (c) sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against. (2) An assessment benchmark does not include— (a) a matter of a person’s opinion; or (b) a person’s circumstances, financial or otherwise; or (c) for code assessment—a strategic outcome under section 16 (1)(a); or (d) a matter prescribed by regulation. Examples of assessment benchmarks— a code, a standard, or an expression of the intent for a zone or precinct (3) A local categorising instrument is— (a) a planning scheme; or (b) a TLPI; or (c) a variation approval, to the extent the variation approval does any of the things mentioned in subsection (1). (4) A regulation made under subsection (1) applies instead of a local categorising instrument, to the extent of any inconsistency. (5) A local categorising instrument— (a) may state that development is prohibited development only if a regulation allows the local categorising instrument to do so; and (b) may not state that development is assessable development if a regulation prohibits the local categorising instrument from doing so; and (c) may not, in its effect, be inconsistent with the effect of a specified assessment benchmark, or a specified part of an assessment benchmark, identified in a regulation made for this paragraph. Note— -- 6 of 15 -- 7 Assessment benchmarks are given effect through the rules for assessing and deciding development applications under section 45 , 59 or 60. (6) To the extent a local categorising instrument does not comply with subsection (5), the instrument has no effect. (7) A variation approval may do something mentioned in subsection (1) only in relation to— (a) development that is the subject of the variation approval; or (b) development that is the natural and ordinary consequence of the development that is the subject of the variation approval. (8) Subsections (4) and (6) apply no matter when the regulation and local categorising instrument commenced in relation to each other.” The accepted development point [20] The applicant submits that under the Planning Regulation 2017, operational work that is the clearing of native vegetation on freehold land within a “category X” area is “exempt clearing work” which is “accepted development” under the Planning Act 2016. In making the submission, the applicant relies on submissions as follows: “(a) Schedule 21, Part 2 of the Regulation identifies that clearing freehold land within a “Category X” area is “exempt clearing work”; (b) “exempt clearing work” is expressly excluded from the definition of prohibited development (Schedule 10, Division 1 of the Regulation) and assessable development (Schedule 10, Division 2 of the Regulation); and (c) Section 44 of the PA has the effect that development which is not categorized as prohibited or assessable development is accepted development for which a development approval is not required: (i) Section 44 of the PA provides that development falls within one of the following categories: “prohibited development”, “assessable development” or “accepted development”; (ii) in this case, as prohibited development and assessable development have been excluded, then it must be “accepted development”; and (iii) By section 44(4) of the PA, a development approval is not required for “accepted development”.” [21] These submissions call for careful consideration to be given to the provisions of the Planning Act 2016 and the Planning Regulation 2017. [22] As is noted above, development may be categorised as prohibited development, assessable development or accepted development. In the event that there is no -- 7 of 15 -- 8 categorisation of a particular form of development, the development is (by default) accepted development. [23] There are two broad types of instrument that may categorise development, namely a regulation or a local categorising instrument, such as a planning scheme. [24] The Planning Regulation 2017 is a regulation that categorises each of the three categories of development for s 45(5) of the Planning Act 2016. In particular: (a) s 18 provides that development stated in schedule 7 is accepted development; (b) s 19 provides that development is prohibited development if it is stated in schedule 10 to be prohibited development; and (c) s 20(1) provides that development is assessable development if it: (i) is stated in schedule 9 or 10 to be assessable development; and (ii) is not prohibited development under s 19. [25] Pursuant to s 43(5)(b) of the Planning Act 2016, s 16 of the Planning Regulations 2017 also stipulates particular forms of development that a local categorising instrument is prohibited from stating is assessable development. It does so by reference to schedule 6. [26] Schedule 7 and schedule 10 of the Planning Regulation 2017 contain the following entries with respect to operational work for clearing vegetation: “Schedule 7 Accepted development Part 3 Operational work 12 Operational work for clearing native vegetation Operational work that is clearing native vegetation to which an accepted development vegetation and clearing code applies if the work complies with the code. -- 8 of 15 -- 9 Schedule 10 Development assessment Part 3 Clearing Native Vegetation Division 1 Prohibited development 4 Prohibited development–clearing native vegetation other than for a relevant purpose (1) Operational work that is the clearing of native vegetation on prescribed land is prohibited development to the extent the work – (a) is not for a relevant purpose under the Vegetation Management Act, section 22A; and (b) is not exempt clearing work; and (c) it is not accepted development under schedule 7, part 3, section 12. Division 2 Assessable development 5 Assessable development–clearing native vegetation on prescribed land Operational work that is the clearing of native vegetation on prescribed land is assessable development, unless the clearing is – (a) exempt clearing work; or (b) accepted development under schedule 7, part 3, section 12.” [27] There is no relevant entry in either schedule 6 or schedule 9 of the Planning Regulation 2017. [28] Section 3 of the Planning Regulation 2017 states that the dictionary in schedule 24 defines particular words used in the regulation. In schedule 24: (a) “prescribed land” is defined to include freehold land; and (b) “exempt clearing work” is defined as follows: “Exempt clearing work means operational work that is the clearing of native vegetation – (a) on prescribed land, if the clearing is – (i) clearing, or for another activity or matter, stated in schedule 21, part 1; or (ii) clearing stated in schedule 21, part 2 for the land; or (b) that, under the Vegetation Management Act, section 74, is not affected by that Act.” -- 9 of 15 -- 10 [29] Schedule 21, part 2, item 2 of the Planning Regulation 2017 relates to clearing vegetation on freehold land. In particular, item 2(d) relevantly states: “Part 2 Clearing for particular land 2 Freehold land For freehold land, clearing vegetation – … (d) in a category X area; or …” [30] Schedule 24 of the Planning Regulation 2017 defines: (a) a “category X area” as “an area shown on the regulated vegetation management map or PMAV as a category X area”; (b) a “regulated vegetation management map” by reference to s 20A of the Vegetation Management Act 1999; (c) a “PMAV” as a property map of assessable vegetation under the Vegetation Management Act 1999. [31] However, it does not necessarily follow that, pursuant to s 44(6) of the Planning Act 2016, the proposed clearing is accepted development. The defined expression “exempt clearing work” does not have substantive operation of itself. As was observed by Barwick CJ, McTiernan and Taylor JJ in Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 at 635: “…The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense-or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way. As was said by Sutherland (Statutes and Statutory Construction, 2nd ed., vol. 2, p. 687), “Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves ". Consequently the effect of the Act and its operation in relation to dividends as defined by the Act must, we think; be found in the substantive provisions of the Act which deal with “dividends”.” [32] I accept the submission of the Applicant that the Planning Regulation 2017 expressly categorises exempt clearing work as being neither prohibited nor assessable -- 10 of 15 -- 11 development. However, I do not accept that the Planning Regulation 2017, properly construed, is to be understood as categorising the development as accepted. [33] Although the Planning Act 2016 provides for three mutually exclusive categories of development, and the Planning Regulation 2017 excludes exempt clearing work for its categorisation of certain clearing as prohibited and assessable, it does not follow that the Planning Regulation 2017 must therefore be understood as categorising exempt clearing work as accepted development. [34] The Applicant submits:2 “… in defining assessable development, the Regulation refers to schedules 9 and 10 which (as already discussed) carve out of assessable development the exempt clearing work. So the regulation not only tells us what is assessable development, it also tells us what is not assessable development.” [35] 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. [36] I also do not accept that such a construction “is to give no scope to the extensive provision in the Regulation to defining exempt clearing work and then using that definition to confine the scope of prohibited and assessable development.” The definition of exempt clearing work confines the scope of prohibited development and assessable development in schedule 10, part 3, item 4 and item 5 of the Planning Regulation 2017 respectively. [37] There is no evident legislative intent that the definition of exempt clearing work also confines the scope of vegetation clearing that a local government may categorise as prohibited development or assessable development in a local categorising instrument. The absence of such an intention is apparent when one considers the operation of s 43(5) of the Planning Act 2016 and s 16 and schedule 6 of the Planning Regulation 2017. Those provisions prohibit a local categorising instrument from stating that development is assessable development if a regulation prohibits the local categorising instrument from doing so. Schedule 6 does not make reference to exempt clearing work. [38] Properly construed, the legislation contemplates that either the regulation or a local planning instrument may categorise development as assessable development. To the 2 Applicant’s Submissions in Reply – Court Doc 12 p 5 [20(a)]. -- 11 of 15 -- 12 extent that the Planning Regulation 2017 does not expressly categorise development as prohibited development, assessable development or accepted development, and does not prohibit a local categorising instrument from categorising development as assessable development, the Planning Regulation 2017 leaves the door open for a local categorising instrument to categorise development. [39] Consideration of other provisions in the broader legislative context confirms this interpretation, including: (a) schedule 10, part 3, item 5 of the Planning Regulation 2017, which contemplates that there is a difference between accepted development and exempt clearing work; (b) s 7(5) of the Vegetation Management Act 1999, which states: “This Act does not prevent a local planning instrument under the Planning Act from imposing requirements on the clearing of vegetation in its local government area.” That provision contemplates that a local planning instrument, such as a planning scheme, can regulate the same subject matter as that regulated by the Vegetation Management Act 1999. This is reinforced when one considers the definitions in the Vegetation Management Act 1999 for accepted development and assessable development. Those definitions refer to s 44 of the Planning Act 2016, not a schedule to the Planning Regulation 2017; and (c) schedule 8, table 2, item 1(b) of the Planning Regulation 2017, which contemplates that there may be circumstances where development is made assessable under a local categorising instrument, even though the development is the subject of specific consideration in a schedule to the Planning Regulation 2017. [40] These provisions confirm the legislative intent that the purpose of including a definition of exempt clearing work is to provide a definition of a particular class of clearing for the purpose of defining the extent of operation of schedule 10, part 3, items 4 and 5 of the Planning Regulation 2017. The definition is not intended to have substantive operation. [41] The Explanatory Notes for the Planning Regulation 2017 reinforce an interpretation whereby the “door is left open” to local governments to categorise development -- 12 of 15 -- 13 unless they are expressly prohibited from doing so pursuant to s 43(5)(b) of the Planning Act 2016 and s 16 and schedule 6 of the Planning Regulation 2017. The Explanatory Notes relevantly state: “The Regulation has been developed following an extensive review of State interests and ensures that matters requiring regulation or assessment are consistent with the principles for the review of state interests, as follows: a) State interests are managed through the most appropriate and effective planning tool for delivery b) the state is accountable for state issues, local issues are a local government matter c) state involvement in land use planning and development assessment occurs only where it is essential i.e. where a matter is of particular importance, has an unacceptable level of risk, or requires state expertise …” [42] The absence of categorisation of “exempt clearing” as prohibited development or accepted development in the Planning Regulation 2017 is insufficient of itself to trigger the presumption in s 44(6) of the Planning Act 2016 that such development is accepted development. The presumption in s 44(6) is only triggered if no categorising instrument categorises the proposed clearing as prohibited development, assessable development or accepted development. [43] The Planning Regulation 2017 does not exhaustively define development that is prohibited development, assessable development or accepted development.3 Rather, s 44 of the Planning Act 2016 permits any categorising instrument to categorise development, subject to the limitation in s 43(5)(b) of the Planning Act 2016. There is no such limitation here. As I have already mentioned, under s 43 of the Planning Act 2016, a categorising instrument includes a regulation or a local categorising instrument. [44] As such, in determining whether the proposed clearing is accepted development, it is necessary to have reference to the regulation and any relevant categorisation under a local categorising instrument. 3 It is not necessary to deal with the submissions in the Applicant’s Submissions in Reply – Court Doc 12 pp 6-9 [22]-[32] as I do not regard the Planning Regulation 2017 as exhaustively defining accepted development. -- 13 of 15 -- 14 [45] Here, the proposed clearing is assessable development under the Moreton Bay Regional Planning Scheme 2016. It is unlawful to carry out that assessable development absent an effective development approval. [46] For completeness, I note that I was referred to the decision of this court in Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2015] QPEC 49; [2015] QPELR 972. That case involved a different legislative regime, which regime included a category of development called “exempt development”. The findings in that case do not assist me here. The proper construction of the Planning Act 2016 and the Planning Regulation 2017 must be determined by reference to the provisions contained therein. The inconsistency point [47] The Applicant contends that the Moreton Bay Regional Planning Scheme 2016 purports to categorise operational works to clear vegetation as assessable development, irrespective of whether it is vegetation in a “category X” area under the Vegetation Management Act 1999. It submits such a categorisation is inconsistent with the Planning Regulation 2016. [48] Section 43(4) of the Planning Act 2016 states: “A regulation made under subsection (1) applies instead of a local categorising instrument, to the extent of any inconsistency.” [49] Thus, if there is an inconsistency, pursuant to s 43(4) of the Planning Act 2016, the Planning Regulation 2017 will apply instead of the Moreton Bay Regional Planning Scheme 2016. [50] The Applicant submits that, in this case, there is an inconsistency as the Planning Regulation 2017 categorises exempt clearing work as accepted development. It submits that to the extent that the Moreton Bay Regional Planning Scheme 2016 makes the same work assessable, it is inconsistent with the Planning Regulation 2017 and invalid.4 [51] For the reasons outlined above, I am not persuaded that the proposed clearing is accepted development under the Planning Regulation 2017. As such, there is no inconsistency. Although the proposed clearing is not made assessable development or prohibited development by the Planning Regulation 2017, it is made assessable 4 Applicant’s Submissions in Reply – Court Doc 12 p 11 [41]. -- 14 of 15 -- 15 development by a local categorising instrument, namely the Moreton Bay Regional Planning Scheme 2016. [52] Given my findings with respect to the “accepted development point”, it is unnecessary for me to further address the submissions of the parties with respect to the “same development point” or the “inconsistency point”.5 Conclusion [53] The application for declarations is dismissed. 5 It is also not necessary to deal with. -- 15 of 15 --