Although clearing Category X vegetation may be allowable under the Vegetation Management Act, a recent Court of Appeal decision has confirmed that it is also important to ensure that the clearing is also allowable under other clearing restrictions and particularly, the local town planning scheme.
Under the Vegetation Management Act clearing Category X vegetation is considered to be accepted development on freehold land and leasehold land for agricultural and grazing purposes, and no notification or permit is required to clear under that Act.
Although clearing Category X vegetation is “exempt clearing work” under the Planning Regulation, as it is not categorised under the Regulation as either prohibited, assessable or accepted development, it can be dealt with under the local Council’s town planning scheme. The local Council can therefore provide in its town planning scheme that “exempt clearing work” (including clearing of Category X vegetation) can require approval. It’s also important to note that these provisions apply to all “exempt clearing work” listed under the Regulation and not just clearing Category X vegetation.
Interestingly, as the Planning Regulation provides that clearing native vegetation to which an accepted development vegetation clearing code applies is accepted development under the Regulation (so long as it complies with the Code), it can’t be governed by the local town planning scheme. This means that although clearing Category X vegetation can be made assessable development under the local town planning scheme, clearing Category B or C vegetation under their accepted development clearing codes is accepted development under the Regulation and can’t be governed by the local town planning scheme.
Before clearing any native plants you also need to determine if the Flora Survey Trigger Mapping for the area (under the protected plant provisions of the Nature Conservation Act) shows that there are any “high risk areas” on it. If there are “high risk” areas you will need to arrange for a flora survey of the clearing impact area and if the survey identifies endangered, vulnerable or near threatened plants (“EVNT plants”) and the impacts on them can’t be avoided, a clearing permit is required before any clearing can be undertaken.
Unfortunately clearing Category X vegetation is not as clear cut as many believe and before undertaking any clearing you need to not only confirm its categorisation under the Vegetation Management Act, but also check the Planning Regulation, the local town planning scheme and the protected plant mapping.
