5.9Preservation of trees or
vegetation [compulsory, except subclause (9) optional]
(1)
The objective of this clause is to preserve the
amenity of the area, including biodiversity values, 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 that
is within a heritage conservation area, or
(b)
that is or forms part of an Aboriginal object or
that is within an Aboriginal place of heritage
significance,
unless the Council is satisfied that the proposed
activity:
(c)
is of a minor nature or is for the maintenance of
the heritage item, Aboriginal object, Aboriginal place of heritage
significance or heritage conservation area, and
(d)
would not adversely affect the heritage
significance of the heritage item, Aboriginal object, Aboriginal place of
heritage significance or 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:
(i)
that is authorised by a development consent or
property vegetation plan under the Native Vegetation
Act 2003, or
(ii)
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 and
Spatial Information Act 2002, or
(e)
plants declared to be noxious weeds under the
Noxious Weeds Act
1993.
Note—
Permissibility may be a matter that is determined
by or under any of these Acts.
(9)
Subclause (8) (a) (ii) does not apply in relation
to land in Zone R5 Large Lot Residential, Zone E2 Environmental Conservation,
Zone E3 Environmental Management or Zone E4 Environmental
Living.
Direction—
This subclause is an optional
provision.
cl 5.9 (previously cl
34): Am 2007 (600), Sch 2 [80]. Renumbered 2007 (600), Sch 2 [182]. Am
2007 (600), Sch 2 [182]; 2011 (102), Sch 2 [44]–[50]; 2014 No 33, Sch
2.36 [5].
5.10Heritage conservation
[compulsory]
Note—
Heritage items (if any) are listed and described
in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as
being described in Schedule 5.
Direction—
Heritage items as identified in Schedule 5 must
be shown on the Heritage
Map.
The location and nature of Aboriginal objects and
Aboriginal places of heritage significance may be described in Schedule 5 and
shown on the Heritage
Map (see the direction to Schedule
5).
(1)Objectives
The objectives of this clause are as
follows:
(a)
to conserve the environmental heritage of
[Name of local government area or other relevant
name],
(b)
to conserve the heritage significance of heritage
items and heritage conservation areas, including associated fabric, settings
and views,
(c)
to conserve archaeological
sites,
(d)
to conserve Aboriginal objects and Aboriginal
places of heritage significance.
(2)Requirement for
consent
Development consent is required for any of the
following:
(a)
demolishing or moving any of the following or
altering the exterior of any of the following (including, in the case of a
building, making changes to its detail, fabric, finish or appearance):
(i)
a heritage item,
(ii)
an Aboriginal object,
(iii)
a building, work, relic or tree within a heritage
conservation area,
(b)
altering a heritage item that is a building by
making structural changes to its interior or by making changes to anything
inside the item that is specified in Schedule 5 in relation to the
item,
(c)
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,
(d)
disturbing or excavating an Aboriginal place of
heritage significance,
(e)
erecting a building on land:
(i)
on which a heritage item is located or that is
within a heritage conservation area, or
(ii)
on which an Aboriginal object is located or that
is within an Aboriginal place of heritage
significance,
(f)
subdividing land:
(i)
on which a heritage item is located or that is
within a heritage conservation area, or
(ii)
on which an Aboriginal object is located or that
is within an Aboriginal place of heritage
significance.
(3)When consent not
required
However, development 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, Aboriginal object, Aboriginal place of heritage
significance or archaeological site or a building, work, relic, tree or place
within the heritage conservation area, and
(ii)
would not adversely affect the heritage
significance of the heritage item, Aboriginal object, Aboriginal place,
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 an Aboriginal
place of 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 of proposed development
on heritage significance
The consent authority must, before granting
consent under this clause in respect of a heritage item or heritage
conservation area, consider the effect of the proposed development on the
heritage significance of the item or area concerned. This subclause applies
regardless of whether a heritage management document is prepared under
subclause (5) or a heritage conservation management plan is submitted under
subclause (6).
(5)Heritage
assessment
The consent authority may, before granting
consent to any development:
(a)
on land on which a heritage item is located,
or
(b)
on land that is within a heritage conservation
area, or
(c)
on land that is within the vicinity of land
referred to in paragraph (a) or (b),
require a heritage management document 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 heritage 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)Aboriginal places of heritage
significance
The consent authority must, before granting
consent under this clause to the carrying out of development in an Aboriginal
place of 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 by means of an adequate
investigation and assessment (which may involve consideration of a heritage
impact statement), and
(b)
notify the local Aboriginal communities, in
writing or in such other manner as may be appropriate, about the application
and take into consideration any response received within 28 days after the
notice is sent.
(9)Demolition of nominated State
heritage items
The consent authority must, before granting
consent under this clause for the demolition of a nominated State heritage
item:
(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, or for any purpose on an Aboriginal
place of heritage significance, 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 or
Aboriginal place of heritage significance is facilitated by the granting of
consent, and
(b)
the proposed development is in accordance with a
heritage management document 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
management document is carried out, and
(d)
the proposed development would not adversely
affect the heritage significance of the heritage item, including its setting,
or the heritage significance of the Aboriginal place of heritage significance,
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]. Subst 2011 (102), Sch 2 [52]. Am 2011 (362), Sch 1
[11].