Looking to clear vegetation on your Gold Coast property? You may wish to consider the case of JJJM Pty Ltd v Council of the City of Gold Coast [2024] QPEC 9, which involved a Planning and Environment Court appeal against the Gold Coast City Council (Council). The Council refused a development application (DA) for a material change of use for accepted development, subject to requirements, for caretaker’s accommodation and animal keeping (horse stables) (Development).
The relevant planning scheme is the Gold Coast City Plan Version 7 (Planning Scheme), under which the caretaker’s accommodation use is accepted development subject to requirements, and the animal keeping is code assessable.
The Development was also subject to the following environmental significance overlays (Overlays):
- biodiversity areas overlay;
- vegetation management overlay; and
- priority species overlay.
Accordingly, the Environmental Significance Overlay Code (ESO Code) was used to assess compliance. It was found that the majority of the land was covered in either medium priority vegetation, or general priority vegetation, thus falling within the Overlay area.
The Development, in particular the caretaker’s residence, required that earthworks and vegetation clearing be undertaken on 1,452m2 of the property (which represents 0.84% of the total land area) (Proposed Clearing Area). The relevant ESO Code provisions were Purpose (1), Overall Outcomes 2(a)(iv), 2(b), 2(f) and PO1, PO3, PO9, PO13, PO15, PO17 and PO19.
The Court turned its focus to the interpretation of the term “protect in situ”, which appeared in Overall Outcome 2(a)(i), PO3(b) and (c), PO9, PO13, PO17 and PO19 of the ESO Code and is defined in the Planning Scheme as follows:
“For the purposes of the Environmental significance overlay code matters of environmental significance must not be damaged or removed, and the matter cannot be offset.”
Accordingly, it was found that the proposed development would have an impact on the surrounding “vegetation corridor”, and would result in non-compliance with the ESO Code. The Appeal, and therefore the DA, was dismissed by the Court. The ESO Code impacts over 30,000 properties across 47 Council suburbs. Naturally, this places limitations on property owners who wish to remove vegetation to develop their properties, and construct dwellings such as caretaker’s accommodation.
Therefore, it is recommended that you seek legal and expert advice prior to clearing vegetation or submitting a development application that would involve vegetation clearing in the Gold Coast local government area.
Milne Legal provides advice and represents clients in relation to a range of town planning and environmental law matters. If you would like to get in touch, please contact our office on (07) 3210 0943 or email us at admin@milnelegal.com.au.
This publication is general in nature. Its content is current at the date of publication. It does not constitute legal advice and you should always seek legal advice based on your particular circumstances prior to making any decisions relating to matters covered by this publication. Certain details may have been sourced from external references, and we cannot assure the accuracy or timeliness of such information.