Australia: New protected plants framework for Queensland

Key Points:

Proponents proposing to clear protected plants should check the exemptions available to determine whether a clearing permit will be required under the new regime.

Amendments to the protected plants regulatory framework under the Nature Conservation Act 1992 (NC Act) and regulations commenced on 31 March 2014, establishing new approval triggers and processes for clearing protected plants in Queensland.

Proponents proposing to clear protected plants should check the exemptions available to determine whether a clearing permit will be required under the new regime.

When will a clearing permit be required?

Under the amended NC Act, a person must not take a protected plant that is in the wild other than under:

• a conservation plan applicable to the plant (note however that the Nature Conservation (Protected Plants) Conservation Plan 2000 has been repealed);
• a licence, permit or other authority issued or given under a regulation; or
• an exemption under a regulation.

There is now only one type of permit available for taking protected plants other than in a protected area – a protected plant clearing permit. Separate licences may be granted for harvesting and growing protected plants.

The exemptions available – contained in the Nature Conservation (Wildlife Management) Regulation 2006 – depend principally on whether the area to be cleared is within a "high risk area" identified on the Flora Survey Trigger Map.

Except when relying on certain exemptions, before starting any clearing, a person must first check the current trigger map to find out if any part of the area to be cleared is within a high risk area. A property-level mapping system is now available on the Department of Environment and Heritage Protection's website.

A flora survey of the "clearing impact area" (generally comprised by the area to be cleared plus a 100-metre buffer area around the boundary of that area) that complies with the Flora Survey Guidelines, or an alternative methodology agreed to by the chief executive, must be undertaken before any clearing is started within a high risk area.

What exemptions are available?

Where the area to be cleared is not within a high risk area, a person may clear protected plants without a clearing permit within 12 months after obtaining a copy of the trigger map, but only if the person is not aware of the presence of any plants that are endangered, vulnerable or near threatened wildlife (EVNT plants) in the area to be cleared, or if so, that there is no clearing of the plants or within 100 metres of the plants. A longer timeframe is allowed for proponents of projects for which an EIS is required and final terms of reference for the EIS have been issued.

A range of other exemptions may apply irrespective of whether the area to be cleared is within a high risk area. For example, a permit will not be required:

• where a flora survey undertaken in the previous 12 months identified that EVNT plants were not present in the clearing impact area, or if so, the plants will not be cleared and there will be no clearing within 100 metres of the plants (a copy of the flora survey report must be given to the chief executive at least 1 week before clearing starts);
• where the taking is for the routine maintenance of existing infrastructure; or
• where the taking has been assessed and authorised under another Act or law in a way that complies with the Protected Plants Assessment Guideline (written notice must be given to the chief executive at least 1 week before clearing starts).

Notably, clearing in the course of an activity under a mining lease or petroleum lease is no longer an exemption in itself, however clearing that was previously authorised under an existing mining lease or petroleum lease can be continued under the transitional provisions.

Applying for a protected plant clearing permit

The typical application fee for a protected plant clearing permit will be $2,500.

An application for a protected plant clearing permit must be made by the landholder, or a person with the landholder's written approval, and must be accompanied by a flora survey report.

A permit may be granted subject to conditions, which may include a requirement to provide an offset for the clearing activity, In addition, a monetary payment – either the "conservation value" or another value imposed on a clearing permit – may be payable.

Existing permits and applications

Existing clearing permits and damage mitigation permits for protected plants will continue in force as transitioned protected plant clearing permits under the new regime (other permits and licences for protected plants have been discontinued). Existing applications for such permits will be taken to be applications for a protected plant clearing permit.

Exemptions granted under the old regime that were in force immediately before commencement will continue to operate for a period of two years.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.