6 December, 2013
Legal News & Analysis – Asia Pacific – Australia – Environment
WHAT YOU NEED TO KNOW
- The Vegetation Management Framework Stage 2 Reforms commenced on 2nd December 2013.
- Amendments to the Vegetation Management Act 1999 (VM Act) by the Vegetation Management Framework Amendment Act 2013 (VMFA) started on the 2nd December 2013.
- Amendments to the Vegetation Management Regulation 2012 (VM Regulation 2012) also started on 2nd December 2013.
WHAT YOU NEED TO DO
- Entities undertaking clearing of vegetation need to become familiar with the new self-assessable vegetation clearing codes as well as the other reforms to the VM Act as quickly as possible as they are significant and controversial.
Introduction
On 2 December 2013, the Vegetation Management Amendment Regulation (No 2) 2013 amended the VM Regulation 2012.
On the same day, Stage 2 reforms to Qld’s vegetation management laws under the Vegetation Management Framework Amendment Act 2013 (VMFA) commenced.
The intention of these amendments is to reduce red tape and regulatory burden on landowners, business and government.
They support the Qld Government’s 4 Pillar Economy – construction, resources, agriculture and tourism.
Policy Objectives
Key policy objectives behind these amendments include:
1. Repealing regrowth regulations on freehold and indigenous land for clearing high value regrowth (native vegetation that has not been cleared since 31 December 1989).
2. Declaration of a new head of power under the VM Act to allow for development of selfassessable vegetation clearing codes.
3. Streamlining the current vegetation mapping system.
4. Creation of new vegetation categories and amendment of some existing categories.
5. Amending section 22A of the VM Act – “Relevant Purpose” provisions to expand the types of applications that can be made for clearing of vegetation.
6. Establishing a more equitable and consistent approach to sentencing and removing unfair enforcement and compliance provisions. These provisions started earlier this year as part of the Stage 1 Reforms under the VMFA.
7. Creation of new clearing purposes for:
a) high value agriculture clearing;
b) irrigated high value agriculture clearing; and
c) necessary environmental clearing.
New Self-Assessable Clearing Codes
The Vegetation Management Amendment Regulation (No 2) 2013 establishes the new self-assessable vegetation clearing codes which took effect on 2 December 2013. There are currently 9 new codes.
The amending regulation also ensures regional ecosystems and corresponding conservation classes are updated based upon recommendations from the Qld Herbarium.
The amending regulation also prescribes ecosystems for various geographical regions.
New Purpose For The VM Act
A new purpose is inserted in the VM Act to allow clearing of vegetation ‘for sustainable land use’.
This new purpose will provide for clearing of native vegetation for sustainable development. It will have significant implications for the administration of the VM Act given the uncertainty of such a term.
Other Key Reforms
1. Part 2, Divisions 4B and 4C of the VM Act are now repealed. The effect is that the previous notification requirement for clearing of regulated regrowth vegetation has been removed together with the relevant offence provision.
What is retained are regrowth regulations on:
a) Leasehold land for agriculture and grazing purposes; and
b) High value regrowth vegetation along watercourses in priority reef catchments (an area located within 50m of a watercourse located in the Burdekin, Mackay, Whitsunday or Wet Tropics catchments identified on the vegetation management watercourse map).
2. The creation of a new head of power for the Minister to make self-assessable vegetation clearing codes for most of the clearing purposes permitted under the vegetation management laws.
There are two types:-
a) ‘must have’ codes for particular vegetation clearing activities;
b) ‘may have’ codes – for any other matter the Minister considers necessary or desirable for achieving the purpose of the VM Act.
These new self-assessable codes which are identified in the amending regulation introduce flexibility in the administration of the VM Act which had not previously existed before.
Although a self-assessable vegetation clearing code may provide for a broad range of matters, such a code must not be inconsistent with the VM Act or the State Policy for Vegetation Management.
Clearing must be carried out in accordance with the relevant code otherwise it will be an offence. If the relevant code cannot be achieved, then development will be assessable development for which a development permit will be required.
3. The vegetation mapping has been simplified and streamlined to make it easier to identify whether vegetation on a property is regulated or not. The regulated vegetation management map is now used to determine whether clearing is regulated.
The new map will replace:
a) regional ecosystem map;
b) remnant vegetation map;
c) regrowth vegetation map.
The new map will also incorporate property maps of assessable vegetation (PMAV’s) into the stand alone map.
The new mapping system is to ensure simplicity.
4. The VMFA also amended and introduced new vegetation categories. The five categories are now:
a) Category A – vegetation subject to compliance notices, restoration notices, offsets, exchange areas, voluntary declarations, an area that has been unlawfully cleared – nothing particularly new.
b) Category B – still essentially remnant vegetation.
c) Category C (new category) – high value regrowth vegetation (only on leasehold land for agriculture and grazing) – not freehold.
d) Category R (new category) – regrowth watercourse areas in the priority reef catchments mentioned above.
e) Category X – an area other than one of the other categories shown as Category X – This is an area not assessable and not regulated under the VM Act.
5. Four new relevant clearing purposes have been created by the VMFA:
a) for ‘relevant infrastructure activities’ and the clearing cannot reasonably be avoided or minimised;
b) for necessary environmental clearing. This is to assist landowners to undertake necessary clearing to restore the ecological environmental condition of the land;
c) for high value agriculture clearing;
d) for irrigated high value agriculture clearing.
High value agriculture and irrigated high value agriculture allow applications to be made for clearing associated with annual and perennial horticulture and broadacre cropping.
Necessary environmental clearing allows landowners to apply to clear native vegetation for purposes that provide an environmental and/or social benefit.
The VMFA also introduces new requirements for making a vegetation clearing application of particular land for high value agriculture clearing or irrigated high value agriculture clearing.
7. Stage 1 Reforms in the VMFA introduced earlier this year inserted new evidentiary and onus of proof provisions to ensure a more consistent approach to sentencing.
It is a reasonable excuse to give information or to not produce a document if that might tend to incriminate the individual or expose the individual to a penalty.
Section 60B of the VM Act was also repealed which section provided a guide for deciding a penalty under the VM Act. It is now necessary to revert to the existing Penalties and Sentences Act 1992 for this regime.
Section 67A was also repealed which placed responsibility for unlawful clearing with the ‘occupier’ of the land, in the absence of evidence to the contrary. Essentially section 67A reversed the onus of proof.
Where To From Here?
If you plan to undertake any clearing activities in the near future, it may be prudent to seek legal advice in light of the new changes.
For further information, please contact:
Peter Rowell, Ashurst
[email protected]
Caroline Ammundsen, Partner, Ashurst
[email protected]