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
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
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
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
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
Some insights about a local government's assessment
of a development application can be found in Golder v Maranoa
Regional Council & Ors  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
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.
Warranties can be risk-shifting mechanisms when the party giving the warranty is not the party at fault for the defect.
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