NATIVE VEGETATION ACT 1991 - SECT 29
NATIVE VEGETATION ACT 1991 - SECT 29
29—Provisions relating to consent
(1) Subject to this
section, in deciding whether to consent to an application to clear native
vegetation, the Council—
(a) must
have regard to the principles of clearance of native vegetation so far as they
are relevant to that decision; and
(b) must
not make a decision that is seriously at variance with those principles.
(2) When determining
an application to clear native vegetation in order to facilitate the
management of other native vegetation, the Council must, in exercising its
limited discretion under subsection (1), have regard to the applicant's
desire to facilitate the management of that other vegetation.
(3) When determining
an application to clear native vegetation that is growing or is situated on
land that forms part of a property that is used for the business of primary
production, the Council must, in exercising its limited discretion under
subsection (1), have regard to the applicant's desire to operate the
business as efficiently as possible.
(4) The Council may
give its consent to clearance of native vegetation that is in contravention of
subsection (1)(b) if—
(a) the
vegetation comprises one or more isolated plants; and
(b) the
applicant is engaged in the business of primary production; and
(c) in
the opinion of the Council, the retention of that plant, or those plants,
would put the applicant to unreasonable expense in carrying on that business
or would result in an unreasonable reduction of potential income from that
business.
(4a) The Council may
give its consent to the clearance of native vegetation that is in
contravention of subsection (1)(b) if—
(a)
the Council has adopted guidelines under section 25 that apply in
relation to the region where the native vegetation is situated (being
guidelines envisaged under subsection (1)(c) of that section); and
(b)
the Council is satisfied—
(i)
that a significant environmental benefit, which outweighs
the value of retaining the vegetation, is to be achieved through the
imposition of conditions and the taking of other action by the applicant; and
(ii)
that the particular circumstances justify the giving of
consent.
(4b) The Council may
give its consent to the clearance of native vegetation that is in
contravention of subsection (1)(b) if the Council is satisfied
that—
(i)
a significant environmental benefit, which outweighs the
value of retaining the vegetation, has been achieved and credited to the
applicant under section 25A, or assigned to the applicant under
section 25B; or
(ii)
a significant environmental benefit, which outweighs the
value of retaining the vegetation, has been, or is to be, achieved by an
accredited third party provider in accordance with section 25C; or
(iii)
a significant environmental benefit, which outweighs the
value of retaining the vegetation, has been, or is to be, achieved by or on
behalf of the applicant, having regard to the combined value of—
(A) the value of any environmental benefit
credited to the applicant under section 25A, or assigned to the applicant
under section 25B; and
(B) the value of any environmental benefit
that has been, or is to be, achieved by an accredited third party provider in
accordance with section 25C; and
(C) the value of any environmental benefit
to be achieved through the imposition of conditions and the taking of other
action by the applicant; and
(b) that
the particular circumstances justify the giving of consent.
(5) The Council must,
before giving its consent, consult the regional landscape board for the
landscape management region where the native vegetation is situated and have
regard to the board's recommendations (if any) in relation to the application.
(6) Where native
vegetation that is the subject of an application for the Council's consent to
clear under this Division is on pastoral land, the Council must, before giving
its consent, consult the Pastoral Board and have regard to the Board's
recommendations (if any) in relation to the application.
(8) Where the Pastoral
Board has been consulted by the Council under subsection (6), the board
may request the owner of the land to submit to it a property plan under the
Pastoral Land Management and Conservation Act 1989 and, until the plan
has been submitted to it, the board may recommend to the Council that it
refuse consent solely on the ground that the plan has not been submitted.
(9) Section 41(10) of
the Pastoral Land Management and Conservation Act 1989 does not apply
to, or in relation to, a property plan requested by the Pastoral Board under
subsection (8).
(9a) If an application
for the Council's consent relates to native vegetation within a
River Murray Protection Area and is within a class of applications prescribed
by the regulations for the purposes of this provision (which class may be
prescribed so as to consist of applications for all such consents),
the Council must, before giving its consent—
(a)
consult the Minister to whom the administration of the River Murray
Act 2003 is committed; and
(b)
comply with the Minister's directions (if any) in relation to the application
(including a direction that the application not be granted, or that if it is
to be granted, then it be subject to conditions specified by the Minister).
(9b) If an application
for the Council’s consent relates to native vegetation, other than
mangroves, within the Adelaide Dolphin Sanctuary and is within a class of
applications prescribed by the regulations for the purposes of this provision
(which class may be prescribed so as to consist of applications for all such
consents), the Council must, before giving its consent, consult with and have
regard to the views of the Minister for the Adelaide Dolphin Sanctuary.
(9c) If an application
for the Council's consent relates to mangroves ( Avicennia marina ) within the
Adelaide Dolphin Sanctuary, the Council must, before giving its consent—
(a)
consult with the Minister for the Adelaide Dolphin Sanctuary; and
(b)
comply with the Minister's directions (if any) in relation to the application
(including a direction that the application not be granted, or that if it is
to be granted, then it be subject to conditions specified by the Minister).
(10) In addition to
the other requirements for consultation under this section—
(a)
the Council must allow any person who desires to do so to make representations
in writing to the Council, within the period prescribed by the regulations, in
relation to the granting or refusal of consent to an application to clear
native vegetation; and
(b)
the Council may, as it thinks fit, allow a person to appear personally or by
representative before it to be heard on whether the Council should or should
not consent to an application to clear native vegetation.
(11) Subject to
subsection (12), 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) in a
case where section 28(4) applies, it attaches to the consent a condition
requiring the applicant to make a payment into the Fund of an amount
considered by the Council to be sufficient to achieve a significant
environmental benefit in the manner contemplated by section 21(6).
(12) A consent to
clearance of native vegetation under this section may be unconditional if, and
only if, the Council is satisfied that—
(a) the
clearance would not result in any loss of biodiversity; and
(b) the
attachment of a condition to the consent under subsection (11) would
place an unreasonable burden on the applicant.
(12a)
Subsections (11) and (12) do not apply in relation to a consent to which
subsection (4b)(a)(i), (ii) or (iii) applies.
(12b) The Council must
account for the application of any credited environmental benefit to a consent
under this Division in accordance with the scheme prescribed by the
regulations.
(13) Consent to
undertake clearance under this Division remains in force for two years or for
such longer period as the Council may fix at the time of granting consent or
subsequently on application by a person who has the benefit of the consent.
(14) An applicant for
consent under this Division may appear before the Council in support of the
application and the Council must observe the rules of natural justice when
considering and determining the application.
(16) Where the Council
refuses an application in whole or in part or attaches conditions to its
consent, it must provide the applicant with a written statement of the reasons
for its decision.
(17) The provisions of
this section also apply to circumstances where the Council is considering an
application referred to the Council under the
Planning, Development and Infrastructure Act 2016 as if the Council were
considering an application for consent under this Act, subject to such
modifications, additions or exclusions as may be necessary for the purpose.