Australia: New Native Vegetation regulations in South Australia

Last Updated: 11 August 2016
Article by Nicole Besgrove and Claire Smith

Most Read Contributor in Australia, August 2016

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.

You might also be interested in...

Footnotes

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.