South Australian Current Acts South Australian Current Acts31B—Order where native vegetation has been cleared
(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) However, the Court
cannot take into account financial grounds when making an assessment under
subsection (7) unless the Court is satisfied that it would be unduly
harsh not to do so.
(9) 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 (and the
Registrar-General must, on service of the order, make the note and then must
not remove the note except pursuant to an order of the Court).
(10) 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.