The Vegetation Management Framework Amendment Act does go some way to reducing the regulatory burden imposed by the vegetation management framework.
"Since its introduction in 2000, the framework has been criticised by landholders, developers, local government and other stakeholders as not only constraining development but being confusing and complicated to operate under". (Vegetation Management Framework Amendment Bill 2013, Explanatory Notes, p.1.)
Amendments introduced by the Vegetation Management Framework Amendment Act 2013 (Qld) (VMFA Act) seek to address criticisms levelled against Queensland's vegetation management framework, while maintaining a necessary balance with the protection of native vegetation.
Some provisions of the VMFA Act commenced on 23 May 2013. The remaining provisions are expected to commence towards the end of 2013.
Under the current Vegetation Management Act 1999 (Qld) framework, the clearing of vegetation is assessable development under the Sustainable Planning Act 2009 (Qld) and requires a development approval, unless an exemption applies.
- "clear" means remove, cut down, ringbark, push over, poison or destroy in any way including by burning, flooding or draining but does not include destroying standing vegetation by stock, or lopping a tree
- "vegetation" is a native tree or plant other than grass or non-woody herbage, a plant within a grassland regional ecosystem prescribed under regulation or a mangrove.
However, a development application cannot be made for clearing vegetation if it is not for a "relevant purpose" under the Vegetation Management Act, such as a co-ordinated project under the State Development and Public Works Organisation Act 1971 (Qld) or necessary to control non-native plants or declared pests.
The VMFA Act does not propose to change the framework. It seeks to create a system of self-assessable development practices in compliance with codes, and assessment triggers for particular development.
The VMFA Act introduces additional "relevant purposes" for when a development application for clearing remnant vegetation may be made. These include:
"High-value agricultural clearing" and "irrigated high-value agricultural clearing" which will allow clearing to establish, cultivate and harvest crops in both dry-land and irrigated conditions.
Proponents will need to meet a range of criteria, including demonstrating that the clearing is likely to be economically viable and that the adverse impacts will be minimised or mitigated.
"Necessary environmental clearing" which is clearing that is necessary to:
- restore the ecological and environmental condition of the land;
- divert existing natural channels in way that replicates the existing form of the natural channels;
- prepare for the likelihood of a natural disaster; or
- remove contaminants from land.
Self-assessable clearing codes
On commencement of the relevant provisions, the VMFA Act will allow the Minister for Natural Resources and Mines to create self-assessable vegetation clearing codes.
Where a self-assessable clearing code applies to particular clearing, it will be self-assessable development under Sustainable Planning Act and therefore not require a development approval, provided it is carried out in compliance with the code. If the code cannot be complied with, a development approval will be required.
Streamlining of vegetation mapping
It is intended that the current mapping system will be replaced with a single state-wide "regulated vegetation management map", with a separate "vegetation management wetlands map" and "vegetation management watercourse map" also to be prepared.
The new regulated vegetation management map is intended to amalgamate information currently contained in the separate regional ecosystem map, remnant vegetation map, regrowth vegetation map and property maps of assessable vegetation.
The new maps are still to be released.
The VMFA Act will also wind back certain "regulated regrowth vegetation" provisions in the Vegetation Management Act that were originally introduced in 2009 by the previous Government.
The 2009 amendments restricted the clearing of regulated regrowth vegetation on freehold and indigenous land, and leasehold land for agriculture and grazing.
On commencement of these provisions, the current restrictions on clearing high value regrowth vegetation from freehold and indigenous land will be removed. The restrictions will be retained on leasehold land for agriculture and grazing. Existing protection for regulated regrowth vegetation located within 50m of a watercourse located in the Burdekin, Mackay Whitsunday or Wet Tropics catchments identified on the vegetation management watercourse map will also remain.
The amendments which have already commenced include:
- The purpose of the Vegetation Management Act now includes the regulation of clearing in a way that allows for sustainable land use.
- The Vegetation Management Act's sentencing guide has been removed so that the court can apply the Penalties and Sentences Act 1992 (Qld) to ensure consistency in sentencing.
- The Vegetation Management Act's interactions with the Wild Rivers Act 2005 (Qld) have been removed in an effort by the State to reduce regulatory duplication on landholders.
- Enforcement and compliance provisions have been amended, including the removal of the reversal of the onus of proof on landholders and the reinstatement of self-incrimination as a reasonable excuse for not providing information.
Additional changes are also proposed to the Sustainable Planning Regulation 2009 (Qld) as part of a broader reform package, including:
- changes to the triggers used by local government to refer material change of use and reconfiguration of lot applications to the State;
- the creation of new exemptions for clearing vegetation without needing an approval and the broadening and simplification of current exemptions.
The amendments proposed by the VMFA Act do go some way to reducing the regulatory burden imposed by the vegetation management framework. Proponents should however be aware that a number of other legislative instruments, including the Environment Protection and Biodiversity Conservation Act 1999 (Cth), Water Act 2000 (Qld) and Nature Conservation Act 1992 (Qld), still have the potential to regulate the same area of vegetation in addition to the Vegetation Management Act.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.