Australia: New Native Vegetation regulations in South Australia

The draft Regulations aim to bring greater clarity and a streamlined process to native vegetation clearing in South Australia.

New draft Native Vegetation Regulations which propose changes to allow for the clearance of native vegetation for certain activities and simplify the approvals pathway are now available for public consultation.

On 14 July 2016, the South Australian Department of Environment, Water and Natural Resources released the draft Native Vegetation Regulations 2016 to seek feedback from the community. Submissions can be made by no later than 5pm on Monday, 15 August 2016.

Why new Regulations?

The Native Vegetation Act provides the regulatory framework for the clearing1 of native vegetation2 in South Australia. Native vegetation will include a dead plant where, under the regulations, it has a specified trunk circumference and provides or has the potential to provide, or is a part of a group of trees or other plants (whether alive or dead) that provides or has the potential to provide, a habitat for animals of a listed threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Generally the clearing of native vegetation to which the Native Vegetation Act applies will require consent to clear that vegetation under the Act, unless an exemption applies under the Native Vegetation Regulations 2003.

In 2014, the Department commenced a routine 10 year review of the current Native Vegetation Regulations 2003. Based upon feedback from key stakeholders, it was identified that there was a need for amendment to:

Based upon this feedback the Department has prepared the new draft Regulations and accompanying guide.

What changes are proposed?

The draft Regulations set out which the native vegetation clearance categories and approval pathway will apply to the clearance activity. While the types of activities largely remain the same as those activities included in the current Regulations, some amendments to definition and additions are proposed.

The most significant amendments include:

  • a new minor clearance activity to capture clearance that does not otherwise fall within the scope of the activities listed in the regulation, but that poses very low risk to the environment and makes up the majority of applications for consent;
  • a new risk hierarchy which is to act as a guiding principle for the proponent in making an application for consent and for the Council when assessing that application;
  • a new risk assessment approach which aims to apply a level of assessment which is proportionate to the level of potential impact the clearance may have.

Clearance categories

The four categories of "permitted clearance" in the draft Regulations are:

  1. Permitted clearance without conditions will still include the following activities with the new additions of vehicles tracks (greater than 5 metres) and cultural activities:
    • clearance of vegetation that is growing or is situated within 10 metres of an existing building or the purpose of maintaining the building;
    • clearance incidental to the repair or maintenance of infrastructure;
    • clearance incidental to the repair or maintenance of an existing dam;
    • clearance under the Electricity Act 1996 or Emergency Management Act 2004; and
    • clearance for other activities such as ongoing grazing practices, safety, walking tracks, fences, regrowth, firewood, plant and animal control. management problems, taking of seeds and specimens, and the Cultana Defence training area.
  1. Clearance with approval of the Chief Officer of the South Australian Country Fire Service (SACFS) and in accordance with any applicable bush fire management plan such as for fire hazard reduction and for the purposes of the Fire and Emergency Services Act 2005.
  2. Clearance with the written approval of the Native Vegetation Council and when undertaken in accordance with a management plan such as roadside or rail corridor vegetation management, maintenance of existing agriculture, forestry or farming which are consistent with the previous 10 years of management3, ecological restoration and management of vegetation, and grazing of domestic stock.
  3. Permitted clearance with approval from the Council such as for major developments and projects, mining and petroleum activities, exploratory operations, and other activities4, including minor clearance5 which is a new category.

Approval pathways

The draft Regulations contain the approval pathways which apply to each of the four categories above:

  1. Permitted clearance: this approval pathway is what is referred to as the exemptions in the current Regulations. In this approval pathway, no application to, or approval from, the Council is required and the proponent is required to undertake a self-assessment to ensure that the clearance activity meets the criteria of the clearance type as provided for in the Schedule 1 of the Regulations. No Significant Environmental Benefit (SEB) (ie. offset) is required.
  2. Fire hazard reduction: similar to the above, this approval pathway requires self-assessment against the Regulations and does not require an application to, or approval from , the Council. However, clearance of this category must be in accordance with written approval of the Chief Executive of SACFS (or delegate) and in accordance with any applicable bush fire management plan. In making a decision, the Chief Executive of SACFS is to consider any applicable bush fire management plan and any guidelines made or approved by the Council for the purposes of this category. No SEB is required.
  3. Management of vegetation: this approval pathway requires the activity to have a management plan approved by the Council or be undertaken in accordance with Guidelines relevant to that activity prepared under the Act. No SEB is required.
  4. Risk assessment: this approval pathway applies to activities which require approval from the Council and:
    • major developments and projects: the proposed development will be assessed and approved under the Development Act 1993, with the environmental impact statement, public environment report or development report (as the case may be) being provided to the Council for comment and report on the clearance of vegetation that is incidental to that proposed development. The Council will apply risk assessment to determine the appropriate level of SEB and will approve the SEB requirements.
    • mining and petroleum activities: the proposed activities will be assessed and approved under the Mining Act6 or Petroleum and Geothermal Energy Act 2000 and the approval process for clearance incidental to those activities is delegated to the Department of State Development in accordance with the Guidelines For a Native Vegetation Significant Environmental Benefit Policy for the clearance of native vegetation associated with the minerals and petroleum industry.
    • exploratory activity: the proposed activity will self-assessed under the Mining Act or Petroleum and Geothermal Energy Act. SEB will only apply when there is potential for significant impacts. Note that "significant impacts" is not currently defined and not applied.
    • other activities: involves a risk assessment to identify the level of risk to biological diversity conservation. An application must be made to the Council and the clearance can only occur in accordance with the written approval of the Council. Where a proposal does not meet the criteria for minor clearance in Schedule 1 of the Regulations a full assessment will be required.

Risk Assessment - mitigation hierarchy and cumulative impacts

A new Regulation is proposed which includes the following mitigation hierarchy which is to apply as a guiding principle for all clearance activities in addition to the requirements under the Act for assessing applications for consent:

  • avoidance: measures should be taken to avoid clearance of native vegetation wherever possible;
  • minimisation: if clearance of native vegetation cannot be avoided, measures should be taken to minimise the duration, intensity and extent of impacts of the clearance on biological diversity to the fullest possible extent (whether the impact is direct, indirect or cumulative);
  • rehabilitation or restoration: measures should be taken to rehabilitate ecosystems that have been degraded, and to restore ecosystems that have been destroyed, by impacts of clearance of native vegetation that cannot be avoided or minimised;
  • offset: any significant adverse impact on native vegetation or ecosystems that cannot be avoided or minimised should be offset by the achievement of a SEB that outweighs that impact.

The mitigation hierarchy applies under the draft Regulations as follows:

  • a person undertaking, or intending to undertake, clearance of native vegetation must have regard to, and endeavour to give effect to, the mitigation hierarchy; and
  • when considering an application for approval to clear native vegetation, the Council must, when exercising a power or making a decision have regard to (amongst other things) the mitigation hierarchy.

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1 "clearing" is defined by reference to the definition of "clearance" which "clearance", in relation to native vegetation, means:

  • the killing or destruction of native vegetation;
  • the removal of native vegetation;
  • the severing of branches, limbs, stems or trunks of native vegetation;
  • the burning of native vegetation;
  • any other substantial damage to native vegetation,

and includes the draining or flooding of land, or any other act or activity, that causes the killing or destruction of native vegetation, the severing of branches, limbs, stems or trunks of native vegetation or any other substantial damage to native vegetation Back to article

2 "native vegetation" generally means a plant or plants of a species indigenous to South Australia including a plant or plants growing in or under waters of the sea, with some limitations that apply.

3 Note that this combines the separate exemptions under the current Regulations for an activity maintaining existing agriculture, forestry or farming management.

4 Such as works on behalf of the Commissioner of Highways, new dwelling or building, incidental to the construction of new infrastructure, in connection with the division of land, regrowth greater than five years of age, recreation track (new), commercial vehicle access track exceeding 5 metres and incidental to the lawful construction or expansion of a dam.

5 Clearance that does not fall within the scope of the activities contained in the Schedule.

6 Mining Act means the Mining Act 1971, the Opal Mining Act 1995, the Petroleum and Geothermal Energy Act 2000, the Offshore Minerals Act 2000 or the Roxby Downs (Indenture Ratification) Act 1982.

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.

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