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The Two Prominent Planning Law Issues that Emerged out of 2019

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An article written by Ian Neil

MDL/WSL has a vastly experienced team focused on Planning and Environment Court and Land Court issues, led by Ian Neil, Director.

Two prominent planning law issues emerged in 2019 and will attract much attention for the foreseeable future.

The first is the escalating importance of consideration of Bushfire Management aspects for any development. From a position in recent years where only rarely was the issue of Bushfire Management raised as a planning consideration, we now see industry acceptance that even suburban development proposals usually attracts necessary consideration of Bushfire Management. And of course the recent and on-going bushfire disasters that have beset most Australian states makes it an obvious issue for consideration for any development proposal in order to ensure safety of property and lives, fauna and flora). Bushfire management, which usually involves some form of clearing, often conflicts with controls implemented by both State and local governments to preserve flora and fauna. The legislation generally offers a path through to ensure the protection of people and property however that is not always readily apparent and State and local controls can at times appear to conflict (to the point of frustration for developers and consultants). On the latter point, the Court of Appeal in FAIRMONT Group Pty Ltd v Moreton Bay Regional Council [2019] QCA 81 held that local government could categorise clearing of vegetation as assessable development, which the State had mapped as category X and subject to the exempt clearing exemptions under the Planning Regualtion 2016. The State has subsequently legislated to ensure that Council planning schemes and policies cannot override the State’s firebreak or fire management clearing exemptions in the Planning Regulations (Planning (Spit Master Plan and Other Matters ) Amendment Regulation 2019) and has expanded the definition of ‘infrastructure’, as it relates to firebreak/fire management clearing or clearing for essential infrastructure, to include buildings or other structures built for any purpose. Our team has been engaged in a number of planning proposals where these issues and conflicts have been hotly contested and we are well placed to advise and represent developers in that regard, hopefully to avoid the delays and costs of a Court hearing.

The second issue is Brisbane City Council’s (whose lead is usually followed by most other Councils) determination to protect ‘traditional building character’ houses ie pre-1947 residences by raising the hurdles to be met under the Traditional Building Character (Demolition) Overlay Code in City Plan 2014. In an unusual Planning Court case (Brassgrove v BCC BD 551/2019), our client had initially obtained a development approval including approval for demolition of a pre-1947 house at Camp Hill. Unfortunately, even though the development approval remained current, the demolition approval lapsed. Such approvals generally only have a two year life, so it is essential to always diarise currency periods for any development approval. Despite Council having originally approved the demolition, and even having granted a related development approval after the demolition approval had lapsed, Council refused to revive the demolition approval. In a lengthy Judgment addressing the issues involved, the Planning Court supported the Council’s stance in not reviving the demolition approval. The demolition of course could have been undertaken at any time between its original approval in 2016 and the lapse date in 2018, however the City Plan changes meant that the overall development for a valuable Multi Unit site was frustrated by the lapsed demolition approval. Developers can expect that BCC will be heartened by that result in the Planning Court and demolition or even renovation of traditional character houses will be a very difficult task from hereon.

We have assembled a highly experienced, capable team of legal practitioners, committed to delivering you expertise across all legal services. Find your local office: