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 several times since 2003 and appears in its current form consolidated as at 19 November 2013.

The NALL makes 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.

While the objects of the NALL are supported, for the following reasons its methodology is indiscriminate, inefficient and unfair:

  • The granting of a development approval for a material change of use or reconfiguration of a lot 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 a material change of use or reconfiguration of a lot other than where the Vegetation Management Act 1999 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 Sustainable Planning Act 2009.
  • 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 vegetation protection order exists without contacting Council and the constrained ability to access mapping layers or 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.
  • 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.

There is a clear need for the NALL to be reviewed and reformed. For a detailed analysis of the above issues, please refer to our article "Brisbane City Council Natural Assets Local Law 2003".

Some insights about a local government's assessment of a development application can be found in Golder v Maranoa Regional Council & Ors [2014] QPEC 68, in which the Planning and Environment Court (Court) considered an Originating Application seeking a declaration that a local government had failed to independently assess the environmental management of a proposed development.

The subject development application sought development permits for material change of use and an environmentally relevant activity (ERA) in relation to a proposed wastewater storage pond at Euthulla. The use was described by Mr Golder's legal team as "a very rudimentary sewerage treatment plant" which treated black water and grey water coming from mining camps.

The application had been referred to the Department of Environment and Heritage Protection (DEHP). It issued a concurrence agency response in response to the application advising that it had no requirements. DEHP separately issued an environmental authority (EA) for the ERA component, which included conditions controlling operational aspects of the proposed development.

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