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This is a Bill, not an Act. For current law, see the Acts databases.
NATIVE VEGETATION PROTECTION BILL 2004
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Ms Roslyn Dundas)
Nature
Conservation (Native Vegetation Protection) Amendment Bill
2004
Contents
Page
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Ms Roslyn Dundas)
Nature Conservation
(Native Vegetation Protection) Amendment Bill 2004
A Bill for
An Act to amend the Nature Conservation Act 1980, and for other
purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Nature Conservation (Native Vegetation Protection)
Amendment Act 2004.
(1) This Act (other than sections 7, 8 and 9) commences on the day after
its notification day.
(2) Sections 7, 8 and 9 commence on the later of—
(a) the day after this Act’s notification day; and
(b) the commencement of the Environment Legislation Amendment Act
2004, part 2.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Part
2 Nature Conservation Act
1980
3 Legislation
amended—pt 2
This part amends the Nature Conservation Act 1980.
insert
43A Commercial firewood
collection—regulations
(1) The regulations may make provision about the clearing or removal of
dead wood from any land for commercial firewood collection.
(2) In this section:
dead wood means any dead tree or part of a dead tree, whether
or not it is—
(a) standing; or
(b) of a species indigenous to the ACT.
insert
Part 5A Clearing native vegetation outside
reserved areas
Division 5A.1 General
45AAA Object of pt 5A
The object of this part is to ensure the long-term conservation of native
vegetation and, in particular—
(a) to increase the overall area and quality of native vegetation in the
ACT by—
(i) reducing the incidence of clearing of native vegetation; and
(ii) requiring the rehabilitation of degraded native vegetation or the
revegetation of cleared land to compensate for any native vegetation lost
because of approved clearing; and
(b) to protect native vegetation of high conservation value having regard
to its contribution to such matters as water quality, biodiversity, and the
prevention of salinity and land degradation; and
(c) to improve the condition of existing native vegetation, particularly
where it has high conservation value; and
(d) to encourage the revegetation of land, and the rehabilitation of land,
with appropriate native vegetation; and
(e) to ensure that the area of native habitat in the ACT is not reduced.
45AAB Application of pt 5A
This part does not apply to native vegetation in a reserved area.
45AAC Meaning of clearing of
native vegetation for pt 5A
(1) In this part:
clearing native vegetation includes any of the
following:
(a) cutting down, felling, thinning, logging or removing native
vegetation;
(b) burning native vegetation;
(c) doing anything else that kills or is likely to kill native
vegetation.
(2) Native vegetation is cleared in an area
if—
(a) at least—
(i) 10% of the area is covered by native vegetation (whether living or
dead) before the clearing; and
(ii) 50% of the vegetation cleared in the area consists of native
vegetation; or
(b) the vegetation cleared in the area consists of at least 3 trees per
hectare that are—
(i) of a species indigenous to the ACT; and
(ii) at least 10m high.
45AAD Meaning of clearing causing serious harm
for pt 5A
The clearing of native vegetation in an area causes serious
harm to the area if—
(a) it causes the loss of an endangered ecological community or part of an
endangered ecological community; or
(b) the total area cleared of native vegetation is more than
2 hectares; or
(c) it happens in a Ramsar wetland.
45AAE Meaning of clearing causing material
harm for pt 5A
The clearing of native vegetation in an area causes material
harm to the area if the total area cleared of native vegetation is more
than 0.2 hectares but not more than 2 hectares.
Division 5A.2 Offences of clearing native
vegetation outside reserved areas
45AAF Clearing causing serious
harm
(1) A person commits an offence if—
(a) the person clears native vegetation in an area; and
(b) the clearing causes serious harm to the area.
Maximum penalty: 1 000 penalty units.
(2) An offence against this section is a strict liability
offence.
45AAG Clearing causing material
harm
(1) A person commits an offence if—
(a) the person clears native vegetation in an area; and
(b) the clearing causes material harm to the area.
Maximum penalty: 500 penalty units.
(2) An offence against this section is a strict liability
offence.
45AAH Contravention of approved vegetation management
plan
(1) A person commits an offence if the person—
(a) is a landholder subject to a vegetation management plan approved under
division 5A.5; and
(b) contravenes a requirement under the plan to do, or not do,
something.
Maximum penalty: 100 penalty units.
(2) An offence against this section is a strict liability
offence.
45AAI Territory may recover
costs
(1) In a prosecution for an offence against section 45AAF or
section 45AAG, the court may, in addition to the penalty that may be
imposed, order the defendant to pay to the Territory the amount of any
reasonable costs incurred or to be incurred by the Territory in making good the
damage caused by the clearing.
(2) In a prosecution for an offence against section 45AAH, the court may,
in addition to the penalty that may be imposed, order the defendant to pay the
Territory the amount of any reasonable costs incurred or to be incurred by the
Territory in satisfying the relevant requirement under the approved vegetation
management plan.
(3) Where the court makes an order under subsection (1) or (2), the same
proceedings may be taken in relation to the order as if it were a judgment of
the court entered in civil proceedings in favour of the Territory.
Division 5A.3 Clearing of native
vegetation—permitted clearing
45AAJ Permitted clearing
Division 5A.2 does not apply to the clearing of native vegetation permitted
under this division.
45AAK Routine agricultural management
activities
(1) Clearing native vegetation for routine agricultural management
activities is permitted.
(2) However, this section does not authorise any clearing of native
vegetation if—
(a) it exceeds the minimum extent necessary for carrying out the activity;
or
(b) it is done for work or a building or structure before the grant of any
statutory approval or other authority required for the work, building or
structure.
(3) The continuation of existing cultivation, grazing or rotational
farming practices is permitted if it does not involve the clearing of remnant
native vegetation.
(4) Grazing that is not likely to result in substantial long-term decline
in the structure and composition of native vegetation is permitted.
45AAL Clearing to avoid imminent
risk
Clearing of native vegetation is permitted where it is necessary and
appropriate to avoid an imminent risk of—
(a) serious harm to a person; or
(b) substantial damage to property.
45AAM Statutory authority
The following clearing of native vegetation is permitted:
(a) clearing in accordance with a vegetation management plan approved
under division 5A.5;
(b) clearing in accordance with a licence under this Act for the purpose
of scientific research;
(c) clearing authorised under the Emergencies Act 2004;
(d) clearing under the Roads and Public Places Act 1937,
section 13 (Trees etc overhanging public places);
(e) necessary clearing for a survey done or supervised by a surveyor under
the Surveyors Act 2001;
(f) necessary clearing for network operations under the Utilities Act
2000.
Note This Act does not apply to functions exercised under the
Emergencies Act 2004 for the purpose of protecting life or property, or
controlling, extinguishing or preventing the spread of fire (see s 6).
Division 5A.4 Clearing of native
vegetation—land development
45AAN Definitions for div 5A.4
In this division:
development means a proposed development to which an
application under the Land Act, part 6 (Approvals and orders) applies.
Land Act means the Land (Planning and Environment) Act
1991.
45AAO Approved clearing for
developments
Division 5A.2 does not apply to the clearing of native vegetation approved
under this division.
45AAP Conservator’s approval needed for
development clearing
(1) This section applies to a development that involves the clearing of
0.2 hectares, or more, of native vegetation.
(2) The development application must not be approved under the Land Act
unless the clearing is approved by the conservator under this
division.
45AAQ Approval by conservator
(1) The conservator may, in writing, approve or refuse to approve, the
clearing of native vegetation for a development.
(2) An approval may be subject to stated conditions and must include a
requirement for compliance with a vegetation management plan approved under
division 5A.5.
(3) A vegetation management plan may require revegetation or
rehabilitation of areas of native vegetation on land other than the land subject
to clearing.
(4) In making a decision under subsection (1), the conservator must
consider the following:
(a) the extent of harm to the natural environment that would be caused by
the clearing;
(b) whether there are practicable ways of avoiding or minimising the loss
of native vegetation because of the clearing;
(c) any matters prescribed under the regulations;
(d) any other matter the conservator considers relevant.
Division 5A.5 Vegetation management
plans
45AAR Landholders may submit
plans
(1) A person may submit a draft vegetation management plan to the
conservator for approval under this division.
(2) A draft plan cannot be submitted for approval without the consent in
writing of—
(a) each landholder to which the plan applies; and
(b) any person who has an interest in the land prescribed under the
regulations.
(3) A draft plan must comply with any other requirement prescribed under
the regulations about the form or content of the draft plan.
45AAS Plans require conservator’s
approval
(1) A vegetation management plan has effect for this part only if it is
approved by the conservator.
(2) In deciding whether to approve a draft plan, the conservator must
apply the following principles:
(a) native vegetation must be protected and conserved to reduce the
incidence of land degradation and deterioration in water quality and provide
habitats for plants and animals;
(b) biodiversity at the regional level and the productivity of the land
must be maintained;
(c) sustainable management of vegetation is reliant on the active
participation of individual landholders and resource managers, and
landholders’ acceptance of their obligation to manage the land
sustainably;
(d) vegetation management planning at a regional level is needed in
addressing and integrating issues such as biodiversity, conservation, land and
water protection and ecologically sustainable and profitable land use;
(e) the best available scientific information and continuous improvement
in the information base should underpin the regulatory system;
(f) revegetation and land rehabilitation must be encouraged;
(g) each vegetation management plan must, to the fullest extent, attempt
to provide for no net loss of native vegetation on the land to which it
applies;
(h) there must not be any net loss in the native vegetation in the ACT
reviewed on an annual basis.
45AAT Consultation with Flora and Fauna
Committee
Before deciding whether to approve or refuse to approve a vegetation
management plan, the conservator must consult and consider the views of the
Flora and Fauna Committee about the draft plan.
45AAU Content of plans
(1) A vegetation management plan must make provision for native vegetation
management on the land to which it applies, including the following:
(a) any proposals for clearing native vegetation on the land;
(b) any proposals relating to the continuation of existing routine
agricultural practices;
(c) provisions about excluding any clearing for routine agricultural
management, or other activities, from being permitted clearing;
(d) any proposals to revegetate or rehabilitate other areas of native
vegetation;
(e) any other provisions prescribed under the regulations.
(2) A vegetation management plan may include a requirement to revegetate
or rehabilitate areas of native vegetation on land other than to which the plan
applies.
(3) A vegetation management plan may include, or be part of, a plan of
management under the Land Act, division 5.7 (Public land).
45AAV Public notice of approved
plan
(1) An approved vegetation management plan is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(2) The conservator must publish a notice about the approval of a
vegetation management plan in a daily newspaper within 3 days after the day of
the approval.
45AAW Duration of plans
(1) A vegetation management plan has effect for the period (not more than
30 years) stated in the plan.
(2) A vegetation management plan—
(a) may be varied by a landholder to whom it applies with the approval of
the conservator; and
(b) may be terminated in accordance with the regulations if the landholder
contravenes a requirement of the vegetation management plan.
(3) The regulations may make provision for reviews of vegetation
management plans after 10 years.
45AAX Registered plan runs with
land
(1) An approved vegetation management plan attaches to the land to which
it applies and is binding on the owner of the land for the time being.
(2) The conservator must lodge a copy of each approved vegetation
management plan, and any variation or ending of the plan, with the
registrar-general for registration under the Land Titles Act 1925.
(3) The conservator must ensure as far as practicable that the copy of the
plan is lodged with the registrar-general in registrable form.
Note The Land Titles Act 1925 provides for the
registrar-general to register a plan mentioned in s (2) under that Act (see s
48).
45AAY Enforcement order
A party to an approved vegetation management plan may apply to the Supreme
Court for an enforcement order to give effect to the plan if—
(a) someone contravenes a requirement of the plan; or
(b) there are reasonable grounds for believing that someone may contravene
a requirement of the plan.
Note Contravene includes fails to
comply with (see Legislation Act, dict, pt 1).
Division 5A.6 AAT review of
decisions
45AAZ Reviewable decisions
Each of the following is a reviewable decision:
(a) a decision by the conservator to approve or refuse to approve the
clearing of native vegetation for a development under section 45AAQ;
(b) a decision by the conservator to approve or refuse to approve a
vegetation management plan under section 45AAS;
(c) a decision by the conservator to approve or refuse to approve a
variation of a vegetation management plan under section 45AAW.
45AAZA Notice of reviewable
decisions
(1) The conservator must use his or her best endeavours to give written
notice of each reviewable decision to each person whose interests are affected
by the decision.
(2) The notice must comply with the requirements of the code of practice
in force under the Administrative Appeals Tribunal Act 1989,
section 25B (1).
(3) In particular, the notice must tell the person—
(a) that a person whose interests are affected by the decision may apply
to the administrative appeals tribunal for review of the decision, and how the
application must be made; and
(b) about options available under other Territory laws to have the
decision reviewed by a court or the ombudsman.
45AAZB Review of decisions by
AAT
A person may apply to the administrative appeals tribunal for review of a
reviewable decision.
6 Conservation
directionsSection 47
(1)
substitute
(1) The conservator may give the occupier of land directions for the
protection or conservation of native animals, native vegetation, native plants
and native timber on the land.
(1A) Without limiting subsection (1), a direction may relate to compliance
with a requirement under a vegetation management plan approved under division
5A.5.
omit
substitute
60L Meaning of damage for div
8.3
9 Section
60L, definition of cause
omit
10 Dictionary,
new definitions
insert
cause, serious or material harm, means substantially
contribute directly or indirectly to the harm.
clearing—
(a) for part 5A (Clearing native vegetation outside reserved
areas)—see section 45AAC; and
(b) for division 8.2 (Clearing native vegetation in reserved
areas)—see section 60C; and
(b) for division 8.3 (Damaging land in reserved areas)—see section
60L.
existing rotational farming practices means rotational
farming practices that—
(a) are reasonable and in accordance with accepted farming practice;
and
(b) are in place before the commencement of this Act.
native vegetation means any of the following kinds of
vegetation indigenous to the ACT:
(a) trees;
(b) understorey plants;
(c) groundcover consisting any kind of grass or herbaceous
vegetation;
(d) plants occurring in a wetland or stream.
Ramsar wetland means a declared Ramsar wetland under the
Environment Protection and Biodiversity Conservation Act 1999 (Cwlth),
section 17.
routine agricultural management activities means any of the
following activities on land carried out by or for the landholder:
(a) the construction, operation or maintenance of rural infrastructure
including (subject to the regulations) dams, permanent fences, buildings,
windmills, bores, stockyards and farm roads;
(b) the removal of pest plants under the Land (Planning and
Environment) Act 1991;
(c) the control of pest animals under the Land (Planning and
Environment) Act 1991;
(d) the collection of firewood and fencing material (except for commercial
purposes);
(e) the harvesting or other clearing of native vegetation planted for
commercial purposes;
(f) any other activity prescribed under the regulations.
Part
3 Land (Planning and Environment) Act
1991
11 Legislation
amended—pt 3
This part amends the Land (Planning and Environment) Act
1991.
insert
165 Subdivisions affecting native
vegetation
(1) This section applies to a proposed subdivision of an area of land
that—
(a) contains an area of native vegetation greater than 0.2 hectares;
or
(b) has a boundary that runs through an area of native vegetation greater
than 0.2 hectares.
(2) The planning and land authority must not grant a lease of any part of
the area unless there is a vegetation management plan approved under the
Nature Conservation Act 1980, section 45AAS for—
(a) the undivided area mentioned in subsection (1); or
(b) each subdivided part of the area mentioned in subsection
(1).
substitute
(c) must give to the conservator for comment a copy of each application
that relates to public land; and
(ca) must give to the conservator a copy of each application that involves
the clearing of native vegetation to which the Nature Conservation Act
1980, part 5A (Clearing of native vegetation outside reserved areas)
applies; and
14 Section
230 (1), new note
insert
Note The relevant authority must not approve a development that
involves the clearing of 0.2 hectares, or more, of native vegetation unless the
clearing is approved by the conservator under the Nature Conservation Act
1980 (see section 45AAP)
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2004.
2 Notification
Notified under the Legislation Act on 2004.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2004
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