State, federal and local laws all affect vegetation clearing, so you need to understand what's covered and your obligations.
Identifying the type of vegetation
The first step in determining whether an approval is needed to clear vegetation is to identify the type of vegetation to be cleared and the protections that might apply to it as a result.
There are a number of statutory controls, at each level of government, which protect vegetation and regulate clearing activities. Accurate identification of the vegetation that will be affected by proposed clearing activities will inform which, if any, of those controls may apply, including:
- Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act);
- Vegetation Management Act 1999 (Qld);
- Nature Conservation Act 1992 (Qld); and
- local government planning schemes and local laws.
A variety of online mapping tools are available free of charge that enable an initial assessment to be carried out on the existence, and extent, of protected vegetation located on land that is proposed to be cleared.
The EPBC Act can be triggered if vegetation to be cleared is:
- a listed threatened species or part of a listed threatened community
- providing habitat for listed threatened species
- located on a national heritage place or world heritage place
- within the catchment of a declared RAMSAR wetland
- on Commonwealth land.
The Protected Matters Search Tool can be used to identify whether MNES, or other protected matters under the EPBC Act, are likely to occur on the subject land.
Vegetation Management Act
The Vegetation Management Act establishes the vegetation management framework for Queensland which applies to all vegetation 1 other than state forests, national parks, forest reserves and certain other tenures defined under the Forestry Act 1959 and the Nature Conservation Act.
The vegetation management framework uses a series of maps to determine what vegetation is regulated and where clearing may not take place.
Generally the clearing of vegetation to which the Vegetation Management Act applies is "assessable development" under the Sustainable Planning Act 2009 and will require a development approval in accordance with that Act, unless an exemption under the Sustainable Planning Regulation 2009 applies to the clearing.
Nature Conservation Act
Before starting any clearing, a Flora Survey Trigger Map should be obtained from the Department of Environment and Heritage Protection to find out if any part of the area to be cleared is within a "high risk area".
The Trigger Map is a property level mapping system which shows where endangered, vulnerable or near threatened (EVNT) plants are present, or are likely to be present, and identifies these areas as high risk. Trigger Maps are available from the Department on Environment and Heritage Protection
For proposed clearing that falls within a high risk area, a flora survey of the "clearing impact area" (generally comprised by the area to be cleared plus a 100m buffer around the boundary of that area) that complies with the Flora Survey Guidelines, or an alternative methodology agreed to by the chief executive, must also be undertaken before any clearing is started.
If EVNT plants are to be cleared or may be impacted by the proposed clearing, a clearing permit will be required unless an exemption applies.
Local government planning schemes and local laws
Finally, and in addition to the above, before undertaking any clearing you must consider whether the vegetation is protected under the planning scheme or a local law of the relevant local government authority.
Are there any applicable exemptions?
Once the vegetation and applicable statutory controls have been identified, the next step is to determine whether an exemption applies to the clearing. An exemption may apply based on a range of factors, including:
- the tenure and/or zoning of the land to be cleared
- the area of vegetation to be cleared
- the purpose of the clearing or activity/use which necessitates the clearing
- the entity doing the clearing (eg. private or public)
- other approvals that are required for, or apply to, the land.
For example, under the Sustainable Planning Regulation 2009 the clearing for a resource activity, community infrastructure or clearing which is necessary to remediate contaminated land on either the environmental management register or contaminated land register, will be exempt and does not require an approval under the Sustainable Planning Act.
Is an approval required?
Unless an exemption applies, the clearing of protected vegetation is likely to require an approval pursuant to the applicable statutory control.
Clearing that is likely to have a significant impact on matters of national environmental significance (MNES) should be referred to the Commonwealth Environment Minister to determine whether the proposed action is a "controlled action".
A controlled action will need to go through the assessment and approval process under the EPBC Act. If an approval is required, a condition could require an environmental management plan, offset or other contribution be provided in respect of the vegetation lost as a result of the clearing.
Vegetation Management Act
If there are no applicable exemptions and a development approval is required, an application cannot be made unless the chief executive administering the Vegetation Management Act is satisfied the clearing is for a "relevant purpose" as prescribed by the Act. This includes development that is:
- a coordinated project under the State Development and Public Works Organisation Act 1971
- to ensure public safety
- for clearing an encroachment
- for an extractive industry
- for "relevant infrastructure activities" which includes:
- establishing and maintaining a necessary fence, firebreak, road, or vehicular track; or
- constructing and maintaining necessary built infrastructure.
Proposed vegetation clearing which triggers the requirement for a development approval under the Sustainable Planning Act and is for a relevant purpose will proceed to be assessed through the integrated development assessment system under that Act.
- management purposes;
- fodder harvesting
- improving operational efficiency of existing agriculture
- and necessary environmental clearing, among others.
Nature Conservation Act
Under the Nature Conservation Act it is an offence to 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.
Unless an exemption applies, a protected plant clearing permit is required.
- Is an offset required, and available?
If an EPBC Act approval, development approval, environmental authority or clearing permit is required to authorise the clearing of protected vegetation, it may contain a condition requiring the provision of an environmental offset relating to the vegetation, or area, authorised to be cleared.
An offset required under an EPBC Act approval will need to be provided in compliance with the Environment Protection and Biodiversity Conservation Act 1999 Environmental Offsets Policy.
An offset required under a development approval, environmental authority or clearing permit will need to be provided in compliance with the Environmental Offsets Act 2014 and Environmental Offsets Policy and any local government offset policy (if applicable).
Before undertaking any clearing it is important to consider whether offsets are likely to be required so that the design process and approvals pathway can take this into account. Avoidance and mitigation measures should always be the primary strategy for managing potential impacts on protected vegetation before looking at offsets.
Information you need
√ What is the vegetation that is to be cleared?
√ Is the vegetation mapped as protected vegetation?
√ What is the activity or use of land that necessitates the clearing?
√ Who will be responsible for undertaking clearing?
√ What is the tenure of that land?
√ Who is the owner of that land?
√ What other approvals (if any) are required in respect of that activity or use?
Things to consider
√ Is the vegetation mapping accurate?
√ Are there any applicable exemptions?
√ If approval is needed - are there any bars to an application being made?
√Can the extent of vegetation clearing be mitigated or avoided?
√ Will an offset be required and available?
You might also be interested in...
- A clear path ahead? Navigating Queensland's vegetation management framework
- Independent panel proposes sweeping biodiversity conservation reform for NSW
1"Vegetation" is relevantly, a native tree or plant other than the following
- grass or non-woody herbage;
- a plant within a grassland regional ecosystem prescribed under a regulation;
- a mangrove.
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.