The Brisbane City Council Natural Assets Local Law 2003 (NALL) was made by the Brisbane City Council (Council) exercising powers pursuant to the former Local Government Act 1993.
The NALL has been amended at various times since 2003 and appears in its current form consolidated as at 19 November 2013.
Key Points:
- The granting of a development approval for MCU or ROL that involves clearing vegetation will not necessarily avoid the operation of the NALL. A NALL permit will still be required to interfere with protected vegetation to facilitate a development approval for MCU or ROL other than where the VMA applies to the vegetation.
- The NALL may be contrasted with other local laws and State instruments which provide for an exemption where necessary clearing is required in order to implement a development permit granted under the SPA.
- The effect of the NALL is uncertain because of the lack of a definition of “protected tree”, the open ended nature of the definition of protected vegetation, the inability to ascertain whether a VPO exists without contacting Council and the constrained ability to access and challenge mapping layers which incorrectly categorise vegetation.
- The NALL offends the principles of legality as the law is uncertain and its reach potentially unascertainable.
- There are no appeal rights arising out of a decision made pursuant to the NALL.
- There is a clear need for the NALL to be reviewed and reformed.
- The NALL’s failure to carve out clearing of vegetation to which a development permit for operational work applies, or the clearing of vegetation which is necessary for the implementation of a development permit for material change of use or reconfiguration of a lot, means that arguably the NALL offends section 40 of the City of Brisbane Act 2010. Section 40 prevents a council from making a local law that establishes a process that is similar to or duplicates all or part of a process in the Sustainable Planning Act.
The objects of the NALL (in addition to the control of hazardous vegetation and the control and management of pest vegetation) are to:
- Protect the biodiversity values of the city including, but not limited to, the habitat and ecological requirements of native flora and fauna; and
- preserve natural landforms such as waterways, wetlands, bushlands, ridgelines and steep slopes; and
- facilitate the retention of the landscape character of the city; and
- facilitate the retention of historical and cultural values of the city,
by restricting indiscriminate clearing of vegetation. These are worthy objectives.
The way in which the NALL achieves the above objects is to make it an offence for a person, other than a Council employee in the due performance of his or her duties, to interfere with, or cause or permit interference with any protected tree or any protected vegetation unless it is strictly in accordance with a permit issued by the Council or the interference is an exempt activity under Part 7.
The exemptions in Part 7 of the NALL are limited. They relate to interference with trees that are causing an immediate and significant threat to persons or property, removal of vegetation essential for emergency access, pruning to accommodate overhead and underground utilities, pasture vegetation, garden vegetation, dead trees, pest vegetation and firebreaks.
What does it mean to “interfere with”...
The offence relates to actions which “interfere with” any “protected tree or any protected vegetation”.
“Interfere with” is defined broadly in the NALL. It includes, amongst other things, activities such as to lop, poison, cut, ringbark, uproot, displace and burn.
Where the proposed clearing necessitates a development permit for operational work pursuant to the Sustainable Planning Act 2009 (SPA), because the relevant vegetation is protected under the Vegetation Management Act 1999 (VMA) the NALL will not operate to regulate such clearing.
This exclusion is narrow. It does not extend to proposed clearing associated with a development permit for other development (such as MCU or ROL) or where the proposed clearing requires a development permit for operational work pursuant to a planning scheme (rather than the SPA). Therefore, the granting of an approval for MCU or ROL will not necessarily avoid the operation of the NALL and a permit will usually still be required pursuant to the NALL if it is necessary to interfere with protected vegetation to facilitate the MCU or ROL.
The unfortunate situation in which landowners may find themselves under the NALL may be contrasted with other local laws which provide for an exemption where necessary clearing is required in order to implement a development permit granted under the SPA. For example, the Gold Coast City Council Local Law 6 (Vegetation Management) permits damage to protected vegetation if the damage is reasonably necessary for carrying out work authorised or required under an Act. A specific example cited is work authorised by development approval (where the definition of development approval includes the approval for the construction, alteration or demolition of a building or structure).
...a protected tree or any protected vegetation?
The second element of the offence is that the interference must relate to any “protected tree or any protected vegetation”.
“Protected tree” is not defined in the NALL. “Protected vegetation” is defined to mean the vegetation set out in Column 2 of the Table in Schedule 3 of the NALL or vegetation protected by a development approval under a Planning Act, given after the date of the NALL, for reconfiguring a lot.
Column 2 includes “Council vegetation”[1], “significant native vegetation”, “significant urban vegetation”, “waterway and wetland vegetation” and “vegetation the subject of a vegetation protection order”.
The NALL therefore regulates non-native vegetation, for instance, if a non-native tree is the subject of a VPO or if it is significant urban vegetation. “Significant urban vegetation” means a significant landscape tree and trees with characteristics predominately reflecting or promoting the objects stated in sub-paragraphs (c) and (d) of the objects of the NALL (set out at the start of this article) and, either growing in an area designated as the significant urban vegetation layer on Council’s GIS or included in a register in a subordinate local law. We note that at the present time there is no subordinate local law relating to the NALL.
The now repealed Brisbane City Plan 2000 (the former planning scheme for Brisbane) included a Natural Assets Planning Scheme Policy. This was not carried forward into Brisbane City Plan 2014. The purpose of this policy was to guide the assessment of development applications and to inform land use planning in relation to ecological processes and natural asset features of the City. The Policy comprised two main components, a natural assets register and a section on management intents. The register comprised a number of schedules including a schedule of significant trees, significant flora species and significant landscape trees. It is noted that the NALL’s definition of “significant landscape tree” continues to refer to a register in a planning scheme policy under Brisbane City Plan 2000. As already indicated, that register and planning scheme policy no longer exist under Brisbane City Plan 2014.
Through mapping associated with Brisbane City Plan 2014, it is possible to ascertain whether a parcel of land is subject to the significant landscape tree overlay. It is more difficult however to ascertain whether vegetation is significant native vegetation or significant urban vegetation. Mapping which shows these layers is only available by a paid registration and subscription service operated by the Council. Even if vegetation is shown on the significant native vegetation or significant urban vegetation layer on Council mapping, this is only one aspect of the definition. It must also have characteristics predominately reflecting or promoting the specified objects stated in section 2(1) of the NALL. For instance, in the case of significant native vegetation, if it does not contribute to the biodiversity values of the City or preserve natural landforms then theoretically it would be open to challenge the classification of the vegetation as ‘significant native vegetation’. The NALL does not provide a mechanism for challenging the categorisation of vegetation as protected vegetation or to rectify mapping errors. This can be contrasted with the legal regime under the VMA which contains a process for correcting erroneous mapping through a property map of assessable vegetation.
While, section 18 of the NALL requires Council to maintain for inspection a register of land on which there is protected vegetation, the register is not required to record the categorisation of the vegetation as ‘significant native vegetation’ or ‘significant urban vegetation’ or whether the vegetation is protected by way of a VPO. Unless the protected vegetation register indicates there is a VPO, in order to obtain clarity on whether vegetation is subject to a VPO, it is necessary to engage with the Council’s NALL officers to establish whether a VPO exists. This could be problematic as depending on the site and the nature of the vegetation, an enquiry may prompt the Council to take steps to make a VPO if one does not already exist.
Review/Appeal Rights
If the Council refuses to grant a NALL application, an applicant may apply in writing to the Council to internally review the original decision.[2] Such an application can only be made on limited grounds, namely, the failure to observe procedures required by law, there being no evidence to justify the making of the decision and/or that the making of the decision was in improper exercise of the power conferred by the NALL. Should the Council confirm the original decision, an applicant may apply in writing for a further review.[3]
Both the initial internal review and the further internal review must be conducted by someone within the Council other than the original decision maker (and the person who conducted the initial internal review) and cannot be conducted by a person in a less senior office than earlier decision makers.
Once the review rights have been exhausted there is no avenue to appeal to a court. The appeal right in section 475 of the SPA in respect of decisions of a local government under a local law, is limited to appeals in respect of decisions about the use of premises or the erection of a building or other structure. As such, it does not extend to appeals in respect of decisions about vegetation.
This situation means that an owner of land who goes through an exhaustive impact assessable development application process for a subdivision or material change of use can be effectively prevented from undertaking that development if it requires the clearing of protected vegetation and the Council refuses to grant a NALL permit. The absence of any form of legal recourse, save for possibly judicial review in the Supreme Court, is a travesty. This can be contrasted with Gold Coast City Council Local Law 6 (Vegetation Management) which contains a right of appeal to the Planning and Environment Court in respect a vegetation protection order, compliance or reinstatement order, a clearing permit condition or refusal to grant a permit or failure of the local government to determine a permit within the specified time. Also decisions about development applications for development permits for operational work relating to native vegetation regulated under the VMA are subject to appeal to the Planning and Environment Court.
The NALL and IDAS
The NALL is an example of a local law which intersects with the Integrated Development Assessment System (IDAS) under the SPA, but operates separately from it. It is an example of the kind of dis-integration the Integrated Planning Act 1997 was intended to remedy. Not only does it duplicate processes under the SPA, it involves a layer of regulation on top of that administered by the State under the VMA and the SPA, without the ground-truthing and equity mechanisms of the latter.
Section 40 of the City of Brisbane Act 2010 (CBA) provides that the Council must not make a local law that establishes a process that is similar to or duplicates all or part of a process in the SPA. The CBA exempts from this restriction local laws about advertising devices, gates and grids and roadside dining. It does not exempt local laws about vegetation clearing. Under the SPA, “operational work” is defined as clearing vegetation including vegetation to which the VMA applies. Planning schemes may regulate the clearing of vegetation by making operational work that involves vegetation clearing assessable development. Operational work involving the clearing of native vegetation is made assessable development under the SP Regulation, subject to certain exceptions.
In our view, without carving out clearing of vegetation to which a development permit for operational work applies, or the clearing of vegetation which is necessary for the implementation of a development permit for MCU or ROL (which as a matter of course will have assessed the vegetation) the NALL arguably offends the duplication avoidance provision in section 40 of the CBA. For example, the NALL defines protected vegetation as including vegetation protected under a condition of a development approval. Consequently, landowners are potentially exposed to prosecution under both the SPA and the NALL in respect of the clearing of such vegetation.
The NALL and principles of legality
The NALL exhibits a degree of uncertainty as to the status of alleged protected vegetation by linking the definitions to the promotion of the objects of the NALL. For example, removal of a single spotted gum with a trunk diameter of 30cm, generally speaking, could not itself be said to detract from the objects of the local law about protecting biodiversity and preserving natural landforms. As the mapping layer picks up all vegetation it will inevitably include weed species and vegetation of low value, which would not reflect or promote the objects of the NALL.
The NALL offends the principles of legality. In its decision in Director of Public Prosecutions v Keating [2013] HCA 20 the High Court of Australia reiterated that “the criminal law should be certain and its reach ascertainable by those who are subject to it. This idea underpins the strength of the presumption against retrospectivity in the interpretation of statutes that impose criminal liability.” The NALL creates offences punishable by financial penalties. While ignorance of the law affords no excuse, in the authors’ opinions, the NALL fails to set down clear legal rules and definitions that are capable of being ascertained outside the mind of the regulator. As a result the NALL fails to reflect concepts fundamental to criminal responsibility.
The ability of a mapping layer that has not been ground truth to trigger the application of the laws coupled with the difficulty in establishing whether vegetation is protected calls into question the NALL’s adherence to the fundamental principles of legality. The complete exclusion of the Courts from any form of merits review of the decision made under the NALL compounds the problem. While internal review mechanisms might provide justice to affected landowners, the policies and principles applied by the internal reviewer are unknown, and the grounds are akin to an internal judicial review rather than a merits review.
While the objects of the NALL are supported its methodology is indiscriminate, inefficient and unfair and in light of all the matters raised above, there is a clear need for it to be reviewed and reformed.
For more information or discussion, please contact HopgoodGanim Lawyers' Planning & Environment team.
[1] Meaning vegetation in or upon any land or premises owned, occupied or controlled by Council.
[2] Section 28(1)(a)(ii) of the NALL
[3] Section 28A(1) of the NALL