5.9Preservation of trees or
vegetation [optional]
(1)
The objective of this clause is to preserve the
amenity of the area through the preservation of trees and other
vegetation.
(2)
This clause applies to species or kinds of trees
or other vegetation that are prescribed for the purposes of this clause by a
development control plan made by the Council.
Note—
A development control plan may prescribe the
trees or other vegetation to which this clause applies by reference to
species, size, location or other manner.
(3)
A person must not ringbark, cut down, top, lop,
remove, injure or wilfully destroy any tree or other vegetation to which any
such development control plan applies without the authority conferred
by:
(a)
development consent, or
(b)
a permit granted by the
Council.
(4)
The refusal by the Council to grant a permit to a
person who has duly applied for the grant of the permit is taken for the
purposes of the Act to be a refusal by the Council to grant consent for the
carrying out of the activity for which a permit was
sought.
(5)
This clause does not apply to a tree or other
vegetation that the Council is satisfied is dying or dead and is not required
as the habitat of native fauna.
(6)
This clause does not apply to a tree or other
vegetation that the Council is satisfied is a risk to human life or
property.
(7)
A permit under this clause cannot allow any
ringbarking, cutting down, topping, lopping, removal, injuring or destruction
of a tree or other vegetation:
(a)
that is or forms part of a heritage item,
or
(b)
that is within a heritage conservation
area.
Note—
As a consequence of this subclause, the
activities concerned will require development consent. The heritage provisions
of clause 5.10 will be applicable to any such consent.
(8)
This clause does not apply to or in respect
of:
(a)
the clearing of native vegetation that is
authorised by a development consent or property vegetation plan under the
Native Vegetation Act 2003 or that is
otherwise permitted under Division 2 or 3 of Part 3 of that Act,
or
(b)
the clearing of vegetation on State protected
land (within the meaning of clause 4 of Schedule 3 to the Native
Vegetation Act 2003) that is authorised by a development
consent under the provisions of the Native Vegetation
Conservation Act 1997 as continued in force by that
clause, or
(c)
trees or other vegetation within a State forest,
or land reserved from sale as a timber or forest reserve under the Forestry Act 1916,
or
(d)
action required or authorised to be done by or
under the Electricity Supply Act
1995, the Roads Act
1993 or the Surveying Act
2002, or
(e)
plants declared to be noxious weeds under the
Noxious Weeds Act
1993.
cl 5.9 (previously cl
34): Am 2007 (600), Sch 2 [80]. Renumbered 2007 (600), Sch 2 [182]. Am
2007 (600), Sch 2 [182].
5.10Heritage conservation
[compulsory]
Note—
Heritage items, heritage conservation areas and
archaeological sites (if any) are shown on the Heritage Map. The location and
nature of any such item, area or site is also described in Schedule
5.
(1)Objectives
The objectives of this clause are:
(a)
to conserve the environmental heritage of
[Name of local government area or other relevant name],
and
(b)
to conserve the heritage significance of heritage
items and heritage conservation areas including associated fabric, settings
and views, and
(c)
to conserve archaeological sites,
and
(d)
to conserve places of Aboriginal heritage
significance.
(2)Requirement for
consent
Development consent is required for any of the
following:
(a)
demolishing or moving a heritage item or a
building, work, relic or tree within a heritage conservation
area,
(b)
altering a heritage item or a building, work,
relic, tree or place within a heritage conservation area, including (in the
case of a building) making changes to the detail, fabric, finish or appearance
of its exterior,
(c)
altering a heritage item that is a building by
making structural changes to its interior,
(d)
disturbing or excavating an archaeological site
while knowing, or having reasonable cause to suspect, that the disturbance or
excavation will or is likely to result in a relic being discovered, exposed,
moved, damaged or destroyed,
(e)
disturbing or excavating a heritage conservation
area that is a place of Aboriginal heritage significance,
(f)
erecting a building on land on which a heritage
item is located or that is within a heritage conservation
area,
(g)
subdividing land on which a heritage item is
located or that is within a heritage conservation
area.
(3)When consent not
required
However, consent under this clause is not
required if:
(a)
the applicant has notified the consent authority
of the proposed development and the consent authority has advised the
applicant in writing before any work is carried out that it is satisfied that
the proposed development:
(i)
is of a minor nature, or is for the maintenance
of the heritage item, archaeological site, or a building, work, relic, tree or
place within a heritage conservation area, and
(ii)
would not adversely affect the significance of
the heritage item, archaeological site or heritage conservation area,
or
(b)
the development is in a cemetery or burial ground
and the proposed development:
(i)
is the creation of a new grave or monument, or
excavation or disturbance of land for the purpose of conserving or repairing
monuments or grave markers, and
(ii)
would not cause disturbance to human remains,
relics, Aboriginal objects in the form of grave goods, or to a place of
Aboriginal heritage significance, or
(c)
the development is limited to the removal of a
tree or other vegetation that the Council is satisfied is a risk to human life
or property, or
(d)
the development is exempt
development.
(4)Effect on heritage
significance
The consent authority must, before granting
consent under this clause, consider the effect of the proposed development on
the heritage significance of the heritage item or heritage conservation area
concerned. This subclause applies regardless of whether a heritage impact
statement is prepared under subclause (5) or a heritage conservation
management plan is submitted under subclause (6).
(5)Heritage impact
assessment
The consent authority may, before granting
consent to any development on land:
(a)
on which a heritage item is situated,
or
(b)
within a heritage conservation area,
or
(c)
within the vicinity of land referred to in
paragraph (a) or (b),
require a heritage impact statement to be prepared that
assesses the extent to which the carrying out of the proposed development
would affect the heritage significance of the heritage item or heritage
conservation area concerned.
(6)Heritage conservation
management plans
The consent authority may require, after
considering the significance of a heritage item and the extent of change
proposed to it, the submission of a heritage conservation management plan
before granting consent under this clause.
(7)Archaeological
sites
The consent authority must, before granting
consent under this clause to the carrying out of development on an
archaeological site (other than land listed on the State Heritage Register or
to which an interim heritage order under the Heritage Act
1977 applies):
(a)
notify the Heritage Council of its intention to
grant consent, and
(b)
take into consideration any response received
from the Heritage Council within 28 days after the notice is
sent.
(8)Places of Aboriginal heritage
significance
The consent authority must, before granting
consent under this clause to the carrying out of development in a place of
Aboriginal heritage significance:
(a)
consider the effect of the proposed development
on the heritage significance of the place and any Aboriginal object known or
reasonably likely to be located at the place, and
(b)
notify the local Aboriginal communities (in such
way as it thinks appropriate) about the application and take into
consideration any response received within 28 days after the notice is
sent.
(9)Demolition of item of State
significance
The consent authority must, before granting
consent for the demolition of a heritage item identified in Schedule 5 as
being of State significance (other than an item listed on the State Heritage
Register or to which an interim heritage order under the Heritage Act 1977 applies):
(a)
notify the Heritage Council about the
application, and
(b)
take into consideration any response received
from the Heritage Council within 28 days after the notice is
sent.
(10)Conservation
incentives
The consent authority may grant consent to
development for any purpose of a building that is a heritage item, or of the
land on which such a building is erected, even though development for that
purpose would otherwise not be allowed by this Plan, if the consent authority
is satisfied that:
(a)
the conservation of the heritage item is
facilitated by the granting of consent, and
(b)
the proposed development is in accordance with a
heritage conservation management plan that has been approved by the consent
authority, and
(c)
the consent to the proposed development would
require that all necessary conservation work identified in the heritage
conservation management plan is carried out, and
(d)
the proposed development would not adversely
affect the heritage significance of the heritage item, including its setting,
and
(e)
the proposed development would not have any
significant adverse effect on the amenity of the surrounding
area.
cl 5.10 (previously cl
35): Am 2007 (600), Sch 2 [81]–[87]. Renumbered 2007 (600), Sch 2
[182].