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NATIVE VEGETATION (MISCELLANEOUS) AMENDMENT BILL 2002

[BIL022-B.HAL]

House of AssemblyNo. 15

[As laid on the table and read a first time, 30 May 2002]

South Australia

[Prepared by the Parliamentary Counsel on the instructions of I.F. Evans, M.P.]

NATIVE VEGETATION (MISCELLANEOUS) AMENDMENT BILL 2002

A Bill For

An Act to amend the Native Vegetation Act 1991 and to make a related amendment to the Development (System Improvement Program) Amendment Act 2000.

[OPC-H16]


SUMMARY OF PROVISIONS

1.Short title

2.Commencement

3.Amendment of s. 3—Interpretation

4.Insertion of s. 3A

3A.Substantially intact vegetation

5.Amendment of s. 4—Application of Act

6.Amendment of s. 6—Objects

7.Amendment of s. 8—Membership of the Council

8.Amendment of s. 14—Functions of the Council

9.Amendment of s. 15—Delegation of powers and functions

10.Repeal of Division 2 of Part 3

11.Amendment of s. 21—The Fund

12.Substitution of heading

PART 4

HERITAGE AGREEMENTS, PROPOSALS FOR REVEGETATION

AND FINANCIAL AND OTHER ASSISTANCE

DIVISION 1—HERITAGE AGREEMENTS

13.Amendment of s. 23—Heritage agreements

14.

15.Repeal of s. 23C

16.Insertion of Division 2 of Part 4

DIVISION 2—APPROVAL BY THE COUNCIL OF PROPOSAL

FOR REVEGETATION

23D.Application of Division

23E.Declaration in relation to existing vegetation

23F.Proposal for revegetation of land

23G.Information required on application or submission

23H.Decision by the Council

23I.Noting of Council's approval against the title to the land

17.Insertion of heading

DIVISION 3—FINANCIAL AND OTHER ASSISTANCE

18.Amendment of s. 24—Assistance to landowners

19.Amendment of s. 25—Guidelines for the application of assistance and the management of native vegetation

20.Insertion of Part 4A

PART 4A

ENVIRONMENTAL CREDITS

25A.Environmental credits

25B.Register of environmental credits

25C.Transfer of environmental credits

25D.Cancellation of environmental credits

25E.Surrender of environmental credits

21.Amendment of s. 26—Offence of clearing native vegetation contrary to this Part

22.Amendment of s. 27—Clearance of native vegetation

23.Amendment of s. 28—Application for consent

24.Amendment of s. 29—Provisions relating to consent

25.Substitution of s. 30

30.Conditions of consent

26.Substitution of s. 31

31.Interpretation

31A.Application to the ERD Court for enforcement

31B.Order where native vegetation has been cleared

31C.Interim order

31D.Enforcement of orders

31E.Enforcement notices

31F.Miscellaneous provisions

27.Amendment of s. 32—Appeals

28.Amendment of s. 33—Commencement of proceedings

29.Insertion of Division 3 of Part 5

DIVISION 3—AUTHORISED OFFICERS

33A.Appointment of authorised officers

33B.Powers of authorised officers

33C.Issue of warrants

33D.Provisions relating to seizure

33E.Offence to hinder, etc., authorised officers

33F.Offences by authorised officers, etc.

30.Insertion of Parts 5A and 5B

PART 5A

APPEALS TO THE DISTRICT COURT

33G.Right of appeal

PART 5B

INTEREST AND RECOVERY OF MONEY

33H.Interest

33I.Sale of land for non-payment

31.Insertion of s. 33J

33J.Constitution of Environment, Resources and Development Court

32.Amendment of s. 34—Evidentiary provisions etc.

33.Substitution of s. 36

36.Assessment of costs and expenses

34.Repeal of s. 37

35.Amendment of s. 41—Regulations

36.Amendment of Development (System Improvement Program) Amendment Act 2000

SCHEDULE

Further Amendments of Principal Act


The Parliament of South Australia enacts as follows:

Short title

1. (1) This Act may be cited as the Native Vegetation (Miscellaneous) Amendment Act 2002.

(2) The Native Vegetation Act 1991 is referred to in this Act as "the principal Act".

Commencement

2. This Act will come into operation on a day to be fixed by proclamation.

Amendment of s. 3—Interpretation

3. Section 3 of the principal Act is amended—

(a)by inserting the following definitions after the definition of "biological diversity" in subsection (1):

"breach" of this Act means a contravention of, or a failure to comply with, a provision of this Act and "breached" has a corresponding meaning;

"building" includes a structure that is fixed to land;;

(b)by striking out the definition of "conciliator" from subsection (1);

(c)by inserting the following definitions after the definition of "the Council" in subsection (1):

"the District Court" means the Administrative and Disciplinary Division of the District Court of South Australia;

"the ERD Court" means the Environment, Resources and Development Court;;

(d)by striking out the definition of "land" in subsection (1) and substituting the following definition:

"land" includes—

(a)land submerged by water; and

(b)an interest in land;;

(e)by striking out paragraph (b) of the definition of "native vegetation" in subsection (1) and substituting the following paragraph:

(b)a plant intentionally sown or planted by a person unless the person was acting—

(i)in compliance with a condition imposed by the Council under this Act or by the Native Vegetation Authority under the repealed Act, or with the order of a court under this Act or the repealed Act; or

(ii)in pursuance of a proposal approved by the Council under Part 4 Division 2;

(f)by inserting after paragraph (a) of the definition of "owner" in subsection (1) the following paragraph:

(ab)in relation to dedicated land within the meaning of the Crown Lands Act 1929 that has not been granted in fee simple but which is under the care, control and management of a Minister, local council or other body or person—the Minister, council or other body or person;.

Insertion of s. 3A

4. The following section is inserted after section 3 of the principal Act:

Substantially intact vegetation

3A. (1) A stratum of native vegetation will be taken for the purposes of this Act to be substantially intact if, in the opinion of the Council—

(a)the stratum has not been seriously degraded by human activity during the immediately preceding period of 20 years; or

(b)the only serious degradation of the stratum by human activity during that period has been caused by fire.

(2) In this section—

"stratum" of native vegetation means a layer of a plant community consisting of plants that comprise native vegetation and that have a similar growth habit.

Amendment of s. 4—Application of Act

5. Section 4 of the principal Act is amended by striking out subsection (2) and substituting the following subsections:

(2) This Act applies in those parts of the Hundreds of Adelaide, Munno Para, Noarlunga and Yatala—

(a)that are within the zone designated as the Metropolitan Open Space System or Hills Face Zone by a Development Plan or Development Plans under the Development Act 1993; or

(b)that are to the east of the Hills Face Zone; or

(c)that are within an area prescribed by regulation for the purposes of this subsection,

but does not, subject to subsection (2aa), apply in any other part of those Hundreds.

(2aa) This Act applies to the whole of the area of the City of Onkaparinga.


(2a) This Act applies—

(a)in that part of the Hundred of Port Adelaide bounded on the east by the western boundary of Port Wakefield Road and on the south by the northern boundary of the area of the Corporation of the City of Salisbury; and

(b)in that part of the area of the Corporation of the City of Salisbury bounded on the east by the western boundary of Port Wakefield Road;

(c)in any other part of the Hundred of Port Adelaide prescribed by regulation for the purposes of this subsection,

but does not apply in any other part of the Hundred of Port Adelaide.

(2b) However, the Governor should not make a regulation under subsection (2) or (2a) unless—

(a)

(i)the Governor considers that the regulation should be made in order to enhance the preservation or management of an area that includes significant native vegetation, or in order to assist in the provision of a significant environmental benefit in a particular respect; and

(ii)the Governor is satisfied that the Minister has taken reasonable steps to consult with—

(A)any local council whose area includes any part of the area to which the regulation relates; and

(B)the Environment, Resources and Development Committee of the Parliament; and

(C)any member of the House of Assembly whose electoral district includes any part of the area to which the regulation relates,

about the proposal to make the regulation; or

(b)

(i)the Governor considers that the regulation should be made as an interim measure pending consultation under paragraph (a); and

(ii)the regulation is expressed to expire not more than two months after the day on which it is made.

Amendment of s. 6—Objects

6. Section 6 of the principal Act is amended—

(a)by striking out paragraphs (a) and (b) and substituting the following paragraphs:

(a)the conservation, protection and enhancement of the native vegetation of the State and, in particular, remnant native vegetation, in order to prevent further—

(i)reduction of biological diversity and degradation of the land and its soil; and

(ii)loss of quantity and quality of native vegetation in the State; and

(iii)loss of critical habitat; and

(b)the provision of incentives and assistance to landowners to encourage the commonly held desire of landowners to preserve, enhance and properly manage the native vegetation on their land;;

(b)by striking out from paragraph (c) "efficient use" and substituting "sustainable use";

(c)by striking out from paragraph (e) "that have been cleared of native vegetation" and substituting "where native vegetation has been cleared or degraded".

Amendment of s. 8—Membership of the Council

7. Section 8 of the principal Act is amended by striking out paragraph (e) of subsection (1) and substituting the following paragraph:

(e)one must be a person selected by the Minister from a panel of three persons nominated by the Local Government Association of South Australia;.

Amendment of s. 14—Functions of the Council

8. Section 14 of the principal Act is amended by striking out from paragraph (b)(ii) "from which native vegetation has been cleared" and substituting "where native vegetation has been cleared or degraded".

Amendment of s. 15—Delegation of powers and functions

9. Section 15 of the principal Act is amended by inserting after subsection (5) the following subsections:

(5a) The Council may only make a delegation to a local council or an officer of a local council under subsection (2) with the written approval of the relevant council.

(5b) The Council may only make a delegation to a local council or an officer of a local council under subsection (2), or approve a subdelegation to a committee or officer of a local council under subsection (5), if—

(a)in the case of a delegation to a local council or a subdelegation to a committee—the Council makes it a condition of the delegation or approval (as the case may be) that the local council or committee will, in the exercise or performance of a delegated power or function, seek the advice of a person who holds a qualification in a field of natural resource management, or in biology;

(b)in the case of a delegation or subdelegation to an officer of a local council—the officer is a person who holds a qualification in a field of natural resource management, or in biology.

Repeal of Division 2 of Part 3

10. Division 2 of Part 3 of the principal Act is repealed.

Amendment of s. 21—The Fund

11. Section 21 of the principal Act is amended—

(a)by inserting the following paragraph and word after paragraph (c) of subsection (3):

(ca)exemplary damages paid into the Fund in accordance with an order under section 31A(6)(f); and;

(b)by inserting after subsection (3) the following subsection:

(3a) Where an application to clear native vegetation is made to a local council or other body corporate or other person acting under delegation from the Council, the prescribed fee paid by the applicant under section 28(3)(b)(iii) (excluding the fee prescribed for the report referred to in section 28(3)(b)(iia)) may be retained by the local council or other body or person.;

(c)by inserting after subsection (5) the following subsections:

(5a) Money paid into the Fund as a penalty or exemplary damages under subsection (1)(c) or (ca) must, as far as practicable, be used—

(a)to establish native vegetation on land that is in the vicinity of the relevant land and that has been selected by the Council for that purpose after having regard to the Regional Biodiversity Plan or Plans (if any) prepared by the Minister that apply in the vicinity of the relevant land; and

(b)to preserve and maintain that vegetation once established.

(5b) In subsection (5a)—

"relevant land" means the land on which the native vegetation involved in the offence or breach of the Act by virtue of which the penalty or damages became payable was growing or was situated.;

(d)by striking out subsection (6) and substituting the following subsection:

(6) The Council must in each year apply such amounts as it considers appropriate from the Fund—

(a)for research into the preservation, enhancement and management of native vegetation and to encourage the re-establishment of native vegetation on land from which native vegetation has been cleared; and

(b)to provide such support services to the Council as appear to it to be necessary or desirable.


Substitution of heading

12. The heading to Part 4 of the principal Act is repealed and the following headings are substituted:

PART 4

HERITAGE AGREEMENTS, PROPOSALS FOR REVEGETATION

AND FINANCIAL AND OTHER ASSISTANCE

DIVISION 1—HERITAGE AGREEMENTS

Amendment of s. 23—Heritage agreements

13. Section 23 of the principal Act is amended by striking out subsection (1) and substituting the following subsection:

(1) The Minister may enter into a heritage agreement with the owner of land—

(a)where native vegetation is growing or situated and the Minister considers that provision should be made for the preservation or enhancement of the native vegetation; or

(b)where the land has been re-vegetated with plants of one or more species indigenous to the local area so as to be representative of a naturally occurring plant community and the Minister considers, after having regard to the Regional Biodiversity Plan or Plans (if any) prepared by the Minister, and associated pre-European vegetation mapping (if any) undertaken by the Minister, that apply in the vicinity of the relevant land, that provision should be made for the preservation or enhancement of that vegetation.

Repeal of s. 23C

14. Section 23C of the principal Act is repealed.

Insertion of Division 2 of Part 4

15. The following Division is inserted before section 24 of the principal Act:

DIVISION 2—APPROVAL BY THE COUNCIL OF PROPOSAL

FOR REVEGETATION

Application of Division

23D. This Division applies to native vegetation if—

(a)the Council has declared that this Division applies to the vegetation under section 23E; or

(b)the vegetation is established pursuant to a proposal approved by the Council under section 23F.

Declaration in relation to existing vegetation

23E. The Council may, on the application of the owner of land that has been revegetated with plants of one or more species indigenous to South Australia, declare that this Division applies to the vegetation if, in its opinion, the value of the vegetation is sufficient to warrant the application of the controls against clearance under Part 5.


Proposal for revegetation of land

23F. An owner of land who wishes to revegetate the land with plants of one or more species indigenous to the local area that will be representative of a naturally occurring plant community may submit the proposal to the Council for approval.

Information required on application or submission

23G. The landowner's application under section 23E or submission under section 23F must be in a form approved by the Council and must include, or be accompanied by, such information as the Council requires.

Decision by the Council

23H. If, in the opinion of the Council after having regard to the Regional Biodiversity Plan or Plans (if any) prepared by the Minister, and associated pre-European vegetation mapping (if any) undertaken by the Minister, that apply in the vicinity of the relevant land, and any other matter considered relevant by the Council, the value of the native vegetation referred to in section 23E or 23F is, or will be, sufficient to warrant application of the controls against clearance under Part 5, it may make a declaration in relation to the vegetation under section 23E or approve the proposal under section 23F.

Noting of Council's approval against the title to the land

23I. (1) Where the Council has made a declaration or given its approval under this Division, it must inform the Registrar-General in writing of the declaration or approval and must provide the Registrar-General with such further information as he or she requires to comply with subsection (3).

(2) However, the Council need not proceed to inform the Registrar-General of an approval under section 23F until the Council is satisfied that it is appropriate to do so in accordance with the terms of the approval.

(3) The Registrar-General must note the declaration or approval against the relevant instrument of title for the land or, in the case of land not under the Real Property Act 1886, against the land.

Insertion of heading

16. The following heading is inserted immediately before section 24 of the principal Act:

DIVISION 3—FINANCIAL AND OTHER ASSISTANCE

Amendment of s. 24—Assistance to landowners

17. Section 24 of the principal Act is amended—

(a)by inserting after subsection (1) the following subsection:

(1a) An owner of land in relation to which a proposal has been approved by the Council under Division 2 may apply to the Council for financial assistance in establishing native vegetation on the land in accordance with the proposal.;

(b)by inserting in subsection (4) ", in the case of an application under subsection (1)," after "including".


Amendment of s. 25—Guidelines for the application of assistance and the management of native vegetation

18. Section 25 of the principal Act is amended—

(a)by inserting the following word and paragraph after paragraph (c) of subsection (2):

and

(d)where the guidelines relate to land within the catchment area of a catchment water management board, submit the guidelines to the catchment water management board for comment; and

(e)where the guidelines relate to land within the area of a local council, submit the guidelines to the Local Government Association of South Australia for comment; and

(f)submit the guidelines to the South Australian Farmers Federation Incorporated and to the Conservation Council of South Australia Incorporated for comment.;

(b)by inserting after subsection (5) the following subsections:

(5a) The Council may, by following the procedures required by this section for the preparation and adoption of the initial guidelines, prepare and adopt guidelines varying or replacing guidelines previously adopted under this section.

(5b) Where the Council thinks it is desirable to take the time to consult on proposed guidelines in more detail than is required by this section, it may prepare and adopt guidelines under this section as an interim measure with the intention of varying or replacing them if necessary after it has had time for further consultation.

(5c) For the purposes of subsection (2)(b), (c) and (d), draft guidelines in relation to the application of financial and other assistance will only be taken to relate to a soil conservation district, pastoral land or the catchment area of a catchment water management board if the guidelines explicitly state that they do.

Insertion of Part 4A

19. The following Part is inserted after Part 4 of the principal Act:

PART 4A

ENVIRONMENTAL CREDITS

Environmental credits

25A. (1) Subject to this section, the owner of land that is subject to a heritage agreement under this Act that was entered into after the commencement of this Part is entitled to environmental credits in accordance with a provision (if any) to that effect in the agreement.

(2) Subject to this section, the owner of land that is subject to a heritage agreement entered into under this Act or the South Australian Heritage Act 1978 that was in force immediately before the commencement of this Part is entitled, on application to the Council, to be issued with environmental credits that, in the opinion of the Council, reflect the environmental benefits arising from the agreement.

(3) An owner of land is not entitled to environmental credits under subsection (2)—

(a)in respect of a heritage agreement under the South Australian Heritage Act 1978 in respect of land in relation to which payment was made by the Minister under section 27(1) of the repealed Act; or

(b)if the heritage agreement was—

(i)entered into under this Act in compliance with a condition imposed by the Council under this Act on consent to clear native vegetation; or

(ii)entered into under the South Australian Heritage Act 1978 in compliance with a condition imposed by the Native Vegetation Authority under the repealed Act on consent to clear native vegetation.

(4) An owner of land is not entitled to environmental credits under this section in respect of—

(a)Crown land; or

(b)local government land.

(5) In subsection (4)—

"Crown land" means—

(a)land that has not been granted in fee simple, other than land held under a perpetual lease under the Crown Lands Act 1929; or

(b)land that has been granted in fee simple that is vested in the Crown or an agency or instrumentality of the Crown;

"local government land" means local government land within the meaning of the Local Government Act 1999.

Register of environmental credits

25B. The Council must maintain a register of environmental credits provided by a heritage agreement or issued by the Council which—

(a)includes the name and address of the owner for the time being of the credits; and

(b)identifies the heritage agreement by which the credits were provided or in relation to which the credits were issued.

Transfer of environmental credits

25C. (1) Subject to this section, the owner of environmental credits may transfer them to another person.

(2) A transfer of environmental credits is not effective until registered by the Council.

(3) If a person to whom environmental credits have been issued under section 25A(2) transfers them to another person the following provisions apply:

(a)the consideration (if any) payable for the transfer must be in the form of money and must be paid to the Council; and

(b)if no consideration is paid for the transfer or the consideration paid is, in the opinion of the Council, less than the market value of the credits, the person transferring the credits must pay to the Council an amount that, in the opinion of the Council, is the market value of the credits or the market value less the amount paid as consideration for the transfer; and

(c)the Council must determine the amount of money that, in its opinion, will be required—

(i)to manage the land in relation to which the credits were issued; and

(ii)to manage the native vegetation on that land and the animals on or visiting that land; and

(iii)to preserve and enhance the native vegetation on that land; and

(iv)to provide appropriate and sufficient protection to biodiversity in the circumstances of the particular case,

in accordance with the heritage agreement in force in relation to the land during the period of 20 years immediately following the determination; and

(d)the money paid to the Council under paragraph (a) or (b) must be paid by the Council into the Fund to the extent of the amount determined under paragraph (c) and the balance (if any) must be paid to the person to whom the credits were issued; and

(e)if the person to whom the credits were issued or a subsequent owner of the land in relation to which the credits were issued, applies for assistance under section 24(1)(a) or (b) in respect of the land, the Council must grant the application (subject to such conditions as it thinks fit under section 24(4)) to the extent of the amount paid into the Fund under paragraph (d) that has not previously been granted as assistance under this paragraph.

(4) Subsection (3) does not affect—

(a)the transfer of environmental credits by will or on intestacy or any other transfer of the credits by operation of law; or

(b)the transfer of environmental credits by a subsequent owner of the credits.

Cancellation of environmental credits

25D. (1) The Council may, by notice in writing to the owner of environmental credits, cancel them if, in the opinion of the Council, there has been a breach of the heritage agreement by which the credits were provided or in relation to which the credits were issued that has significantly reduced the environmental benefits arising from the heritage agreement.

(2) The Council may cancel environmental credits under subsection (1) despite the fact that the owner of the credits is not responsible for the breach of the heritage agreement.

(3) No compensation is payable by the Council in respect of environmental credits cancelled under subsection (1).

Surrender of environmental credits

25E. The owner of environmental credits may surrender them to the Council at any time.

Amendment of s. 26—Offence of clearing native vegetation contrary to this Part

20. Section 26 of the principal Act is amended—

(a)by striking out the penalty provision from subsections (1) and (2) and substituting, in each case, the following penalty provision:

Maximum penalty:A sum calculated at the prescribed rate for each hectare (or part of a hectare) of the land in relation to which the offence was committed or $50 000, whichever is greater.;

(b)by inserting after subsection (2) the following subsection:

(2a) If a court convicts a person—

(a)of an offence against subsection (1); or

(b)of an offence against subsection (2) where the effect of the contravention of or failure to comply with the condition that constitutes the offence is that native vegetation has been cleared without the consent of the Council,

the Council must, within the prescribed period, initiate civil proceedings under Division 2 in order to require the offender to make good the breach of this Act unless such proceedings have already been commenced, or an order has already been made, under that Division in relation to the matter, or the conviction is overturned on appeal.;

(c)by inserting in subsection (3) the following definition:

"the prescribed period", in relation to the initiation of civil proceedings against an offender, means—

(a)21 days after the time within which the offender may appeal against the relevant conviction; or

(b)if an appeal is commenced—21 days after—

(i)the appeal is dismissed, struck out or withdrawn; or

(ii)any questions raised by the appeal have been finally determined.


Amendment of s. 27—Clearance of native vegetation

21. Section 27 of the principal Act is amended—

(a)by inserting ", subject to this section," after "native vegetation may" in paragraph (a);

(b)by inserting ", subject to subsection (3)(b)," after "native vegetation may" in paragraph (b);

(c)by inserting after its present contents as amended by this section (now to be designated as subsection (1)) the following subsections:

(2) Subject to subsection (3), the Council cannot give its consent to the clearance of native vegetation under subsection (1)(a) if the vegetation comprises or forms part of a stratum of native vegetation that is substantially intact (see section 3A).

(3) The Council may, despite subsection (2) but subject to the other requirements of this Division, give its consent to the harvesting of native vegetation if, in its opinion, the harvesting will not result in any lasting damage to the plants comprising the vegetation, lead to significant soil damage or erosion, or result in any long-term loss of biodiversity.

(4) The Council may give its consent under subsection (3) subject to such conditions (if any) as the Council thinks fit to impose.

(5) Native vegetation that is growing or is situated on land that is subject to a heritage agreement under this Act or a heritage agreement that was entered into in compliance with a condition of consent to clear native vegetation under the repealed Act cannot be cleared—

(a)under subsection (1)(a) unless the Minister has also given his or her consent to the clearance;

(b)under subsection (1)(b) unless a regulation prescribing a class of vegetation under paragraph (b)(i) or circumstances under paragraph (b)(ii) explicitly extends its operation to vegetation on land that is subject to a heritage agreement.

(6) If the Minister attaches conditions to his or her consent under subsection (4)(a), the Council's consent to the clearance will be taken to be subject to the same conditions, in addition to any other conditions imposed by the Council.

Amendment of s. 28—Application for consent

22. Section 28 of the principal Act is amended—

(a)by striking out subparagraph (ii) of paragraph (b) of subsection (3) and substituting the following subparagraphs:


(ii)either—

(A)information that establishes that the planting and maintenance of native vegetation on the land after clearance or on adjacent land in accordance with the native vegetation management plan will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or

(B)information that establishes that it is not possible for the applicant to provide a significant environmental benefit in the manner referred to in subsubparagraph (A); and

(iia)a report relating to the proposed clearance prepared in a form approved by the Council; and

(iib)such other information as the Council reasonably requires;;

(b)by inserting after "prescribed fee" in subparagraph (iii) of subsection (3)(b) "(including the fee prescribed for the report referred to in subparagraph (iia)";

(c)by inserting after subsection (3) the following subsections:

(4) Where an applicant provides information referred to in subsection (3)(b)(ii)(B) he or she may propose that he or she obtain environmental credits under Part 4A to compensate for the fact that there will not be a significant environmental benefit associated with the proposed clearance.

(5) The report referred to in subsection (3)(b)(iia) must be prepared by the agency or instrumentality of the Crown or other person or body specified by the regulations.

(6) On receipt of the fee prescribed for the report referred to in subsection (3)(b)(iia), the Council (or a local council or other body or person acting under delegation from the Council) must pay the amount of the fee to the Minister who must apply the amount received towards the cost of administering this Act.

Amendment of s. 29—Provisions relating to consent

23. Section 29 of the principal Act is amended—

(a)by striking out subsections (10), (11) and (12) and substituting the following subsection:

(10) The Council may give its consent to clearance of native vegetation under this section if, and only if—

(a)

(i)it attaches to the consent a condition requiring the applicant to establish and manage native vegetation on land specified by the Council; and


(ii)the Council is satisfied that the establishment and management of vegetation in accordance with that condition will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or

(b)

(i)it attaches to the consent a condition requiring the applicant to protect native vegetation growing or situated on land specified by the Council by erecting, improving or maintaining a fence or other barrier on the boundary of the land or on the boundary of land that includes the land to be protected to the specifications included in the condition by the Council so as to prevent livestock or other animals from entering the land; and

(ii)the Council is satisfied that the erection, improvement or maintenance of the fence or other barrier in accordance with that condition will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or

(c)

(i)it attaches to the consent a condition requiring the applicant to enter into a heritage agreement under this Act with respect to specified native vegetation; and

(ii)the Council is satisfied that the management and protection of that vegetation in accordance with the heritage agreement will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or

(d)

(i)environmental credits provided by or issued in relation to a heritage agreement or agreements over land that is within a radius of 50 kilometres from the land to be cleared are surrendered to the Council; and

(ii)the Council is satisfied, after allowing for the loss of the vegetation to be cleared, that the environmental credits surrendered represent a significant environmental benefit.;

(b)by striking out subsection (15).

Substitution of s. 30

24. Section 30 of the principal Act is repealed and the following section is substituted:

Conditions of consent

30. (1) A consent under this Division to the clearance of native vegetation is subject to such conditions (if any) as the Council thinks fit to impose.


(2) Without limiting subsection (1), consent may be subject to one or more of the following conditions:

(a)a condition requiring the applicant to—

(i)establish vegetation consisting of a specified number of plants of a specified species on specified land; and

(ii)nurture, protect and maintain the plants until they are fully established or for such period as the Council specifies;

(b)a condition requiring the applicant to protect native vegetation growing or situated on specified land;

(c)a condition restricting the purposes for which land referred to in a condition under paragraph (a)(i) or (b) can be used;

(d)a condition requiring the applicant to destroy plants of a non endemic species specified by the Council growing on land specified by the Council;

(e)a condition that the applicant enter into a heritage agreement with the Minister under this Act in the terms specified by the Council for the management of specified native vegetation.

(3) Conditions imposed on consent to clear native vegetation are binding on, and enforceable against—

(a)the applicant for the consent; and

(b)all owners and subsequent owners of the land to be cleared and any other land to which a condition relates; and

(c)an occupier of the land to be cleared and any other person who acquires the benefit of the consent.

(4) The Council must inform the Registrar-General in writing of all conditions imposed under this section that relate to land (including conditions under subsection (2)(c)) and must provide the Registrar-General with such further information as the Registrar-General requires to comply with subsection (5).

(5) The Registrar-General must note the conditions against the relevant instrument of title for the land or, in the case of land not under the Real Property Act 1886, against the land.

Substitution of s. 31

25. Section 31 of the principal Act is repealed and the following sections are substituted:

Interpretation

31. In this Division, a reference to a breach of this Act includes a reference to a contravention of, or a failure to comply with, a heritage agreement.


Application to the ERD Court for enforcement

31A. (1) The following persons may apply to the Environment Resources and Development Court for an order to remedy or restrain a breach of this Act:

(a)the Council; or

(b)a person who owns or who has any other legal or equitable interest in land that has been, or will be, affected by the breach; or

(c)in the case of a contravention of, or failure to comply with, a heritage agreement—a party to the agreement.

(2) Proceedings under this section may be brought in a representative capacity with the consent of all persons on whose behalf they are to be brought.

(3) If proceedings under this section are brought by a person other than the Council—

(a)the applicant must serve a copy of the application on the Council within three days after filing the application with the Court; and

(b)the Court must, on application by the Council, join the Council as a party to the proceedings.

(4) An application may be made in the absence of the respondent and, if the Court is satisfied on the application that the respondent has a case to answer, it may grant leave to the applicant to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section.

(5) An application under this section must, in the first instance, be referred to a conference under section 16 of the Environment, Resources and Development Court Act 1993.

(6) If—

(a)after hearing—

(i)the applicant and the respondent; and

(ii)any other person who has, in the opinion of the Court, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings,

the Court is satisfied, on the balance of probabilities, that the respondent to the application has breached this Act; or

(b)the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard,

the Court may, by order, exercise one or more of the following powers:

(c)require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the breach;

(d)require the respondent to make good the breach in a manner, and within a period, specified by the Court, or to take such other action as may appear appropriate to the Court, taking into account the nature and extent of the original vegetation;

(e)require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for, or towards, those costs or expenses;

(f)if the Court considers it appropriate to do so, require the respondent to pay an amount, determined by the Court, in the nature of exemplary damages into the Fund;

(g)require the respondent to take specified action to publicise—

(i)the breach of this Act; and

(ii)the environmental and other consequences flowing from the breach; and

(iii)the other requirements of the order made against the respondent.

(7) In assessing damages under subsection (6)(f), the Court must have regard to—

(a)damage to the environment caused by the breach of this Act; and

(b)the detriment to the public interest resulting from the breach; and

(c)the financial or other benefit (if any) that the respondent sought to gain by committing the breach; and

(d)any other matter it considers relevant.

(8) The power conferred by subsection (6)(f) can only be exercised by a Judge of the Court.

(9) The Council, and any person with a legal or equitable interest in land to which an application under this section relates, is entitled to appear and be heard in proceedings based on the application before a final order is made.

(10) The Court may make such order in relation to costs of proceedings under this section as it thinks just and reasonable.

(11) In this section—

"breach" of this Act includes a threatened contravention of, or failure to comply with, this Act or a heritage agreement.

Order where native vegetation has been cleared

31B. (1) Subject to subsection (6)(d) or (7), where the ERD Court is satisfied on the balance of probabilities that the respondent—

(a)has cleared native vegetation in contravention of this Act; or

(b)has cleared native vegetation pursuant to the Council's consent but has not complied with a condition of a kind referred to in section 30(2) attached to the consent,

the Court must make an order against the respondent under section 31A(6)(d).

(2) The order under section 31A(6)(d) must direct the respondent to—

(a)remove the buildings, works or vegetation (if any) that have been erected, undertaken or planted on the land since the clearance occurred; and

(b)establish vegetation consisting of plants of a species specified in the order in such numbers and on such parts of the cleared land as is specified in the order; and

(c)nurture, protect and maintain the plants until they are fully established or for such period as is specified in the order.

(3) The order under section 31A(6)(d) may—

(a)where part of the original vegetation is still growing or situated on the land—direct that it be removed so that the new vegetation can be established on the land;

(b)include such ancillary directions or orders as the Court thinks fit.

(4) Where the respondent is not the owner or occupier of the land, the order authorises him or her (or a person authorised by him or her) to—

(a)enter the land with such materials and equipment as are reasonably necessary to comply with the order; and

(b)to enter and cross any other land specified in the order with the materials and equipment referred to in paragraph (a) for the purpose of gaining access to the cleared land.

(5) An owner or occupier of land or any other person who hinders or obstructs the respondent (or a person authorised by the respondent) in carrying out the directions of an order under this section or entering and crossing land under subsection (4) is guilty of an offence.

Maximum penalty:$10 000.

(6) If the ERD Court is satisfied on the balance of probabilities that—

(a)the owner or occupier of the cleared land did not know and could not reasonably have been expected to know of the circumstances referred to in subsection (1) requiring the making of an order under section 31A(6)(d); and


(b)compliance with an order under section 31A(6)(d) will cause financial loss to that person,

the Court may—

(c)assess the amount of the financial loss and order the respondent to pay that amount to the owner or occupier of the land; or

(d)refuse to make the order or make the order in a modified form.

(7) If the Court is satisfied that compliance with any order under section 31A(6)(d) would not be reasonably practicable, it may refuse to make the order.

(8) The Court must include in the order a requirement that a copy of the order be served on the Registrar‑General and that the Registrar-General note the order against the relevant certificate or other instrument of title or, in the case of land not under the Real Property Act 1886, against the land.

(9) If, in the opinion of the Court, it should refuse under subsection (6)(d) or (7) to make an order under section 31A(6)(d), the Court may make an order against the respondent requiring the establishment of vegetation in accordance with the provisions of this section on some other land owned by the respondent.

Interim order

31C. (1) If, on an application under this Division or before the determination of the proceedings commenced by an application under this Division, the ERD Court is satisfied that, in order to preserve the rights or interests of parties to the proceedings or for any other reason, it is desirable to make an interim order under this section, the Court may make such an order.

(2) An interim order—

(a)may be made on an application in the absence of the respondent; and

(b)may be made whether or not the application has been referred to a conference under section 31A(5); and

(c)will be made subject to such conditions as the Court thinks fit; and

(d)will not operate after the proceedings in which it is made are finally determined.

Enforcement of orders

31D. (1) A person who contravenes or fails to comply with an order under this Division is, in addition to liability for contempt of the order, guilty of an offence.

Maximum penalty:$50 000.

(2) Where the ERD Court makes an order under section 31A(6)(d) and the respondent fails to comply with the order within the period specified by the Court, the Council may cause any work contemplated by the order to be carried out, and may recover the costs and expenses of that work, as a debt, from the respondent.

(3) Section 31B(4) and (5) apply to, and in relation to, the Council when acting under subsection (2) as though it were the respondent.

(4) Where an amount is recoverable from a person by the Council under subsection (2)—

(a)the Council may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the rate prescribed by regulation on the amount unpaid and on any unpaid interest; and

(b)the amount together with any interest so payable is, until paid, a first charge in favour of the Council on all land owned by the person.

Enforcement notices

31E. (1) If an authorised officer who has been expressly authorised by the Minister to issue directions under this section has reasonable grounds on which to believe that a person has breached this Act, or is likely to breach this Act, the authorised officer may do such of the following as the officer considers necessary or appropriate in the circumstances:

(a)direct the person to refrain, either for a specified period or until further notice, from the act, or course of action, that constitutes, or would constitute, the breach;

(b)if, in the opinion of the authorised officer, a breach has occurred and the breach is a minor breach—direct the person to make good the breach in a manner, and within a period, specified by the authorised officer;

(c)take such urgent action as is required or is, in the opinion of the authorised officer, desirable because of any situation arising from the breach or likely breach (as the case may be).

(2) A direction under subsection (1) must be given by notice in writing.

(3) A notice under subsection (2) must—

(a)identify the authorised officer who is issuing the direction; and

(b)set out any appeal rights that the person to whom the direction is given may have under this Act.

(4) If a person fails to comply with a direction under subsection (1)(b) within the time specified in the notice, the Council may cause the necessary action to be taken.

(5) The costs and expenses incurred by the Council under subsection (4) may be recovered by the Council as a debt due from the person whose failure gave rise to the action.

(6) Where an amount is recoverable from a person by the Council under this section—

(a)the Council may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the rate prescribed by regulation on the amount unpaid and on any unpaid interest; and

(b)the amount together with any interest so payable is, until paid, a first charge in favour of the Council on all land owned by the person.

(7) Subject to any order of the District Court to the contrary, the operation of a direction is not suspended pending the determination of an appeal.

(8) A person who contravenes or fails to comply with a direction under this section is guilty of an offence.

Maximum penalty:$10 000.

(9) A direction cannot be given under this section in relation to a breach if it appears that the breach occurred more than 12 months before the direction is given.

Miscellaneous provisions

31F. (1) The ERD Court may order an applicant in proceedings under section 31A—

(a)to provide security for the payment of costs that may be awarded against the applicant if the application is subsequently dismissed; and

(b)to give an undertaking as to the payment of any amount that may be awarded against the applicant under subsection (2).

(2) If on an application under section 31A the ERD Court is satisfied—

(a)that the respondent has not breached this Act; and

(b)that the respondent has suffered loss or damage as a result of the actions of the applicant; and

(c)that in the circumstances it is appropriate to make an order under this provision,

the Court may, on the application of the respondent (and in addition to any order as to costs), require the applicant to pay to the respondent an amount, determined by the Court, to compensate the respondent for the loss or damage which the respondent has suffered.

(3) The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under subsection (1) or (2).

(4) The ERD Court may, on application under this subsection by a person to whom a notice has been given under section 31D(4)(a) or 31E(6)(a), extend the period that has been fixed by the Council for the purposes of the notice (and the relevant order of the Court under this subsection will then have effect according to its terms).

Amendment of s. 32—Appeals

26. Section 32 of the principal Act is amended—

(a)by striking out "a District Court" from paragraph (a) of subsection (1) and substituting "the ERD Court";

(b)by striking out "a District Court" from paragraph (b) of subsection (1) and substituting "the ERD Court".

Amendment of s. 33—Commencement of proceedings

27. Section 33 of the principal Act is amended by striking out from subsection (1) "three years" and substituting "four years".

Insertion of Division 3 of Part 5

28. The following Division is inserted in Part 5 of the principal Act after Division 2:

DIVISION 3—AUTHORISED OFFICERS

Appointment of authorised officers

33A. (1) The Minister may appoint a person to be an authorised officer for the purposes of this Act.

(2) An appointment of an authorised officer—

(a)must be in writing; and

(b)must be for a fixed term; and

(c)may be subject to conditions; and

(d)may be in respect of the whole State or any specified part of the State.

(3) Each authorised officer must be issued with an identity card that—

(a)includes a photograph of the authorised officer; and

(b)states any conditions of appointment limiting the authorised officer's appointment; and

(c)if the appointment is in respect of part of the State only—states the part of the State in respect of which the authorised officer is appointed; and

(d)in the case of an authorised officer who has been expressly authorised by the Minister to issue directions under section 31E—states that fact.

(4) An authorised officer must, if requested to do so, produce the identity card for inspection before exercising the powers of an authorised officer under this Act in relation to any person.

(5) The Minister may, at any time, vary or revoke an appointment which he or she has made, or vary or revoke a condition of an appointment or impose a further condition in relation to an appointment.

(6) No civil or criminal liability attaches to an authorised officer or a person assisting an authorised officer for an act or omission by the authorised officer or by a person assisting the authorised officer in good faith and in the exercise, performance or discharge, or purported exercise, performance or discharge, of any power, function or duty under this Act.

(7) A civil liability that would, but for subsection (6), lie against an authorised officer or assistant lies instead against the Crown.

Powers of authorised officers

33B. (1) Subject to this Division, an authorised officer may—

(a)enter and inspect any land for any reasonable purpose connected with the administration or enforcement of this Act; and

(b)give directions with respect to the stopping or movement of a vehicle that—

(i)has been used in, or is suspected by the authorised officer of having been used in, the clearance of native vegetation; or

(ii)is carrying a plant, or any part of a plant, comprising native vegetation,

as reasonably required in connection with the administration or enforcement of this Act; and

(c)take samples of any plant or any part of any plant from any land, for identification and analysis as reasonably required in connection with the administration or enforcement of this Act; and

(d)with the authority of a warrant issued under section 33C require any person to produce any documents, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process, as reasonably required in connection with the administration or enforcement of this Act; and

(e)with the authority of a warrant issued under section 33C examine, copy or take extracts from any documents so produced or require a person to provide a copy of any such document or information; and

(f)take photographs or films or make audio, video or other recordings as reasonably required in connection with the administration or enforcement of this Act; and

(g)seize and retain anything that the authorised officer reasonably suspects may constitute evidence of a breach of this Act; and

(h)require a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, a breach of this Act to state the person's full name and usual place of residence; and


(i)require a person who the authorised officer reasonably suspects has knowledge of matters in respect of which information is reasonably required for the administration or enforcement of this Act to answer questions in relation to those matters; and

(j)give any directions reasonably required in connection with the exercise of a power conferred by any of the paragraphs of this subsection or otherwise in connection with the administration or enforcement of this Act.

(2) Without limiting subsection (1)(a), an authorised officer may enter and inspect any land for the purpose of determining whether a heritage agreement entered into under this Act or entered into in compliance with a condition of consent to clear native vegetation under the repealed Act is being, or has been, complied with.

(3) Where an authorised officer enters land and takes samples of any plant or any part of any plant for identification and analysis, the authorised officer must take reasonable steps to provide the owner of land with a reasonable amount of information about his or her actions.

(4) Where an authorised officer enters land and takes photographs or films or makes audio, video or other recordings, the authorised officer must, as soon as reasonably practicable after entering the land—

(a)serve notice on the owner or occupier of the land informing him or her of the date on which the authorised officer entered the land; and

(b)provide the owner or occupier with a copy of the photographs, films, audio, video or other recordings (if any) taken or made by the authorised officer when on the land.

(5) A copy provided under subsection (4)(b) must be in an electronic form unless the Minister authorises it to be provided in some other form.

(6) Where—

(a)a person whose native language is not English is suspected of having committed an offence against this Act; and

(b)the person is not reasonably fluent in English,

the following provisions apply:

(c)the person is entitled to be assisted by an interpreter during any questioning conducted by an authorised officer in the course of an investigation of the suspected offence;

(d)where it appears that the person may be entitled to be assisted by an interpreter, an authorised officer must not proceed with any questioning, or further questioning, until the person has been informed of the right to an interpreter;

(e)if the person requests the assistance of an interpreter, an authorised officer must not proceed with any questioning, or further questioning, until an interpreter is present.

(7) In the exercise of powers under this Act an authorised officer may be assisted by such persons as he or she considers necessary in the circumstances.

(8) An authorised officer may require an occupier of any land or a person apparently in charge of any plant, equipment, vehicle or other thing to give to the authorised officer or a person assisting the authorised officer such assistance as is reasonably required by the authorised officer for the effective exercise of powers conferred by this Act.

(9) Where a person gives assistance to an authorised officer as required under subsection (8), the person must, if he or she so requires, be reimbursed by the authorised officer or the Minister for any reasonable costs and expenses incurred in giving the assistance.

Issue of warrants

33C. (1) Where, on the application of an authorised officer, a magistrate is satisfied that there are reasonable grounds to believe that the inspection of documents may provide information relevant to the administration or enforcement of this Act, the magistrate may issue a warrant authorising an authorised officer—

(a)to require a specified person to produce documents under section 33B(1)(d); and

(b)to examine, copy and take extracts from those documents or to require a person to provide a copy of any of those documents under section 33B(1)(e).

(2) An application for the issue of a warrant may be made either personally or by telephone.

(3) The grounds of an application for a warrant must be verified by affidavit.

(4) An application for the issue of a warrant may not be made by telephone unless in the opinion of the applicant a warrant is urgently required and there is insufficient time to make the application personally.

(5) Where an application for the issue of a warrant is made by telephone, the following provisions apply:

(a)the applicant must inform the magistrate of his or her name and identify himself or herself as an authorised officer, and the magistrate, on receiving that information, is entitled to assume, without further inquiry, that the applicant is an authorised officer; and

(b)the applicant must inform the magistrate of the grounds on which he or she seeks the issue of the warrant; and


(c)if it appears to the magistrate from the information furnished by the applicant that there are proper grounds for the issue of a warrant, the magistrate must inform the applicant of the facts on which he or she relies as grounds for the issue of the warrant, and must not proceed to issue the warrant unless the applicant undertakes to make an affidavit verifying those facts; and

(d)if the applicant gives such an undertaking, the magistrate may then make out and sign a warrant, noting on the warrant the facts on which he or she relies as grounds for the issue of the warrant; and

(e)the warrant will be taken to have been issued, and will come into force, when signed by the magistrate; and

(f)the magistrate must inform the applicant of the terms of the warrant; and

(g)the applicant must, as soon as practicable after the issue of the warrant, forward to the magistrate an affidavit verifying the facts referred to in paragraph (c).

(6) A magistrate by whom a warrant is issued must file the warrant, or a copy of the warrant, and the affidavit verifying the grounds on which the application for the warrant was made, in the ERD Court.

(7) An authorised officer who executes a warrant must, as soon as practicable after execution of the warrant—

(a)prepare a notice in the prescribed form containing—

(i)his or her own name and a statement that he or she is an authorised officer under this Act; and

(ii)the name of the magistrate who issued the warrant and the date and time of its issue; and

(iii)a description of the authority conferred by the warrant; and

(b)give the notice to the person affected by the warrant.

(8) A warrant, if not executed at the expiration of one month from the date of its issue, then expires.

Provisions relating to seizure

33D. (1) Where a thing has been seized under this Division the following provisions apply:

(a)the thing must be held pending proceedings for an offence against this Act related to the thing seized, unless the Minister, on application, authorises its release to the person from whom it was seized, or to any person who had legal title to it at the time of its seizure, subject to such conditions as the Minister thinks fit (including conditions as to the giving of security for satisfaction of an order under paragraph (b)(ii));

(b)where proceedings for an offence against this Act relating to the thing are instituted within the prescribed period after its seizure and the defendant is convicted or found guilty of the offence, the court may—

(i)order that it be forfeited to the Minister; or

(ii)where it has been released pursuant to paragraph (a)—order that it be forfeited to the Minister or that the person to whom it was released or the defendant pay to the Minister an amount equal to its market value at the time of its seizure, as the court thinks fit;

(c)where—

(i)proceedings are not instituted for an offence against this Act relating to the thing within the prescribed period after its seizure; or

(ii)proceedings have been so instituted and—

(A)the defendant is found not guilty of the offence; or

(B)the defendant is convicted or found guilty of the offence but no order for forfeiture is made under paragraph (b),

then the person from whom the thing was seized, or any person with legal title to it, is entitled to recover from the Minister (if necessary, by action in a court of competent jurisdiction) the thing itself, or if it has been damaged or destroyed, compensation of an amount equal to its market value at the time of its seizure.

(2) In subsection (1)—

"the prescribed period" means six months or such longer period as the Environment, Resources and Development Court may, on application by the Minister, allow.

Offence to hinder, etc., authorised officers

33E. (1) A person who—

(a)hinders or obstructs an authorised officer, or a person assisting an authorised officer, in the exercise of powers conferred by this Act; or

(b)uses abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer; or

(c)refuses or fails to comply with a requirement or direction of an authorised officer under this Division; or

(d)when required by an authorised officer under this Division to answer a question, refuses or fails to answer the question to the best of the person's knowledge, information and belief; or


(e)falsely represents, by words or conduct, that he or she is an authorised officer,

is guilty of an offence.

Maximum penalty:$5 000.

(2) A person who assaults an authorised officer, or a person assisting an authorised officer in the exercise of powers under this Act, is guilty of an offence.

Maximum penalty:$10 000 or two years imprisonment or both.

(3) Despite subsection (1)(d), a person is not obliged to answer a question under this Division if to do so might tend to incriminate the person or make the person liable to a criminal penalty.

Offences by authorised officers, etc.

33F. An authorised officer, or a person assisting an authorised officer, who—

(a)addresses offensive language to any other person; or

(b)without lawful authority, hinders or obstructs or uses or threatens to use force in relation to any other person,

is guilty of an offence.

Maximum penalty:$5 000.

Insertion of Parts 5A and 5B

29. The following Parts are inserted after Part 5 of the principal Act:

PART 5A

APPEALS TO THE DISTRICT COURT

Right of appeal

33G. (1) An applicant for consent to clear native vegetation may appeal to the District Court against a refusal by the Council on or after the commencement of this Part to grant the consent or against the imposition by the Council on or after the commencement of this Part of conditions on the consent.

(2) A person who has been given a written direction under section 31E may appeal to the District Court against the direction.

(3) An appeal under subsection (1) or (2) must be instituted in the manner and form determined by the Court within the prescribed period after the appellant first has notice of the decision or direction appealed against or within such further time as the Court considers to be reasonable in the circumstances.

(4) The prescribed period referred to in subsection (3) is—

(a)in the case of an appeal under subsection (1)—two months;

(b)in the case of an appeal under subsection (2)—14 days after the direction is given to the appellant.

(5) An appeal under subsection (1) will be in the nature of a judicial review of an administrative decision on grounds recognised by administrative law (and section 42E(3) of the District Court Act 1991 will not apply).

(6) On an appeal the Court may—

(a)affirm or rescind the decision or direction appealed against;

(b)in the case of an appeal under subsection (1)—remit the subject matter of the appeal to the Council for consideration or further consideration in accordance with any directions or recommendations of the Court.

PART 5B

INTEREST AND RECOVERY OF MONEY

Interest

33H. (1) Interest accrues on an amount payable to the Council under sections 31D and 31E and on unpaid interest under those sections in accordance with the regulations.

(2) A person who is liable to pay an amount under the provisions referred to in subsection (1) is also liable to pay interest that accrues, or has accrued, on or in relation to that amount.

(3) Regulations referred to in subsection (1) may (without limiting their scope) prescribe the time from which interest accrues.

Sale of land for non-payment

33I. (1) Where an amount payable under this Act, or interest in relation to such an amount, is a first charge on land and has been unpaid for one year or more, the Council may sell the land.

(2) Before the Council sells land in pursuance of this section, it must serve notice on the owner and occupier of the land—

(a)stating the period for which the amount and interest have been unpaid; and

(b)stating the amount of the total liability for the amount and interest presently outstanding and charged on the land; and

(c)stating that if that amount is not paid in full within one month of service of the notice (or such longer time as the Council may allow), the Council intends to sell the land for non-payment of the amount and interest.

(3) A copy of a notice must be served on the registered mortgagee or encumbrancee of the land (if any).

(4) If the outstanding amount is not paid in full within the time allowed under subsection (2), the Council may proceed to sell the land.

(5) The sale will, except in the case of land held from the Crown under a lease, licence or agreement to purchase, be by public auction (and the Council may set a reserve price for the purposes of the auction).

(6) An auction under this section must be advertised on at least two separate occasions in a newspaper circulating generally throughout the State.

(7) If, before the date of the auction, the outstanding amount and the costs incurred by the Council in proceeding under this section are paid to the Council, the Council must withdraw the land from auction.

(8) If—

(a)an auction fails; or

(b)the land is held from the Crown under a lease, licence or agreement to purchase,

the Minister may sell the land by private contract for the best price that he or she can reasonably obtain.

(9) Any money received by the Council in respect of the sale of land under this section will be applied as follows:

(a)firstly—in paying the costs of the sale and any other costs incurred in proceeding under this section;

(b)secondly—in discharging the liability for the amount and interest payable under this Act;

(c)thirdly—in discharging any liability to the Crown for rates, charges or taxes (including rates, charges or taxes that are a first charge on the land);

(d)fourthly—in discharging any liability to a council for rates or any other liability to a council in respect of the land;

(e)fifthly—in discharging any liabilities secured by registered mortgages, encumbrances or charges;

(f)sixthly—in discharging any other mortgages, encumbrances and charges of which the Council has notice;

(g)seventhly—in payment to the former owner of the land.

(10) If the former owner cannot be found after making reasonable inquiries as to his or her whereabouts, an amount payable to the former owner must be dealt with as unclaimed money under the Unclaimed Moneys Act 1891.

(11) Where land is sold by the Council in pursuance of this section, an instrument of transfer executed by the Council will operate to vest title to the land in the purchaser.

(12) The title vested in a purchaser under subsection (11) will be free of—

(a)all mortgages and charges; and

(b)except in the case of land held from the Crown under lease or licence—all leases and licences.

(13) An instrument of transfer passing title to land in pursuance of a sale under this section must, when lodged with the Registrar‑General for registration or enrolment, be accompanied by a statutory declaration made by the presiding member of the Council stating that the requirements of this section in relation to the sale of the land have been observed.

(14) Where it is not reasonably practicable to obtain the duplicate certificate of title to land that is sold in pursuance of this section, the Registrar‑General may register the transfer notwithstanding the non‑production of the duplicate, but in that event he or she must cancel the existing certificate of title for the land and issue a new certificate in the name of the transferee.

(15) A reference in this section to land, or title to land, held from the Crown under lease, licence or agreement to purchase, is a reference to the interest of the lessee, licensee or purchaser in the land.

Insertion of s. 33J

30. The following section is inserted in Part 6 of the principal Act before section 34:

Constitution of Environment, Resources and Development Court

33J. The following provisions apply, subject to section 31A(8), in respect of the constitution of the Environment, Resources and Development Court when exercising jurisdiction under this Act:

(a)the Court may be constituted in a manner provided by the Environment, Resources and Development Court Act 1993 or may, if the Presiding Member of the Court so determines, be constituted of a Judge and one commissioner;

(b)the provisions of the Environment, Resources and Development Court Act 1993 apply in relation to the Court constituted of a Judge and one commissioner in the same way as in relation to a full bench of the Court;

(c)the Court may not be constituted of or include a commissioner unless—

(i)in a case where only one commissioner is to sit (whether alone or with another member or members of the Court)—the commissioner; or

(ii)in any other case—at least one commissioner,

is a commissioner who has been specifically designated by the Governor as a person who has wide practical knowledge of, and experience in, the preservation and management of native vegetation.

Amendment of s. 34—Evidentiary provisions etc.

31. Section 34 of the principal Act is amended—

(a)by striking out from subsections (1), (2) and (3) "civil enforcement proceedings under this Act" and substituting, in each case, "enforcement proceedings under Part 5 Division 2";

(b)by striking out from subsection (2) "the occupier" and substituting "the owner and occupier";

(c)by inserting after subsection (3) the following subsection:

(3a) Where in enforcement proceedings under Part 5 Division 2 or in proceedings for an offence against this Act it appears that an alleged fact has been determined by the use of an electronic, sonic, optical, mechanical or other device by an authorised officer or person assisting an authorised officer, the alleged fact must be accepted as proved in the absence of proof to the contrary.

Substitution of s. 36

32. Section 36 of the principal Act is repealed and the following section is substituted:

Assessment of costs and expenses

36. For the purposes of this Act, the costs and expenses that have been or would be incurred by the Council in taking any action are to be assessed by reference to the reasonable costs and expenses that would have been or would be incurred in having the action taken by independent contractors engaged for that purpose.

Repeal of s. 37

33. Section 37 of the principal Act is repealed.

Amendment of s. 41—Regulations

34. Section 41 of the principal Act is amended by striking out paragraph (b) of subsection (2) and substituting the following paragraphs:

(b)prescribe and provide for the payment of fees (the amount of a fee may be prescribed as the Minister's estimate of the cost of the service provided);

(c)empower the Council, or any other person to whom fees are payable, to remit payment of the whole or part of the fees.

Amendment of Development (System Improvement Program) Amendment Act 2000

35. The Development (System Improvement Program) Amendment Act 2000 is amended by striking out paragraphs (a) and (b) of clause 4 of Schedule 1.


SCHEDULE

Further Amendments of Principal Act

Provision Amended

How Amended

Long title

Strike out "to repeal the Native Vegetation Management Act 1985; to make consequential amendments to the South Australian Heritage Act 1978;".

Section 2

Strike out this section.

Section 3(1)

definition of "owner"

Strike out from paragraph (d) "Minister of Lands" and substitute "Minister for Environment and Heritage".

Section 8(1)

Strike out "United Farmers and Stockowners of S.A. Inc." from paragraph (b) and substitute "South Australian Farmers Federation Incorporated".

Section 8(3)

Strike out "United Farmers and Stockowners of S.A. Inc." and substitute "South Australian Farmers Federation Incorporated".

After "Local Government Association" insert "of South Australia".

Section 8(5)

Strike out this subsection.

Section 11(2)

Strike out "notwithstanding" and substitute "despite".

Section 13

Strike out the penalty provision and substitute:

Maximum penalty:$5 000.

Section 15(6)

Strike out the penalty provision and substitute:

Maximum penalty:$5 000.

Section 15(7)

Strike out the penalty provision and substitute:

Maximum penalty:$5 000.

Section 16(2)

Strike out "Government Management and Employment Act 1985" and substitute "Public Sector Management Act 1995".

Section 23A(3)

Strike out "notwithstanding" and substitute "despite".

Heading—Part 5

Strike out heading to Part 5 and substitute:

PART 5

CLEARANCE AND ENFORCEMENT

Section 26(3)

definition of "the prescribed rate"

Strike out from paragraph (b) "the amount of a division 7 fine" and substitute "$2 500".

Section 28(2)

Strike out "Minister of Lands" and substitute "Minister for Environment and Heritage".

Section 35(1) and (2)

Strike out these subsections and substitute:

(1) Proceedings for a summary offence against this Act must be commenced—

(a)within 4 years of the date on which the offence is alleged to have been committed; or

(b)in exceptional circumstances, with the authorisation of the Minister—within 6 years of the date on which the offence is alleged to have been committed.


Schedule 2

Clause 1

Strike out this clause.

Schedule 3

Strike out this schedule.

By Authority: J. D. Ferguson, Government Printer, South Australia

 


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