South Australian Consolidated Regulations South Australian Consolidated Regulations (1) Pursuant to
section 27(1)(b) of the Act, native vegetation may, subject to any other Act
or law to the contrary, be cleared—
(a) if
it is proposed to erect a building that is a dwelling or a structure or other
facility that is ancillary to a dwelling and—
(i)
any development authorisation for the erection of the
dwelling or structure or other facility required by or under the Development
Act 1993 has been obtained; and
(ii)
either—
(A) the vegetation—
• does not
comprise or form part of a stratum of native vegetation that is substantially
intact; and
• except where
the dwelling is within a residential or township zone under the relevant
Development Plan, does not include vegetation of the genus Eucalyptus with a
stem diameter at 300 millimetres above the ground of 200 millimetres or more,
or other vegetation with a stem diameter at the lowest point of the stem above
ground level of 100 millimetres or more; or
(B) —
• the Council is
satisfied (on the basis of information provided to the Council by the person
seeking the benefit of this paragraph and such other information as the
Council thinks fit) that, after taking into account the need to preserve
biological diversity and taking into account the needs of the owner of the
land, the proposed site for the building is the most suitable that is
available; and
• the Council is
satisfied (on the basis of information provided to the Council by the person
seeking the benefit of this paragraph and such other information as the
Council thinks fit) that there is no other practicable alternative that would
involve no clearance or the clearance of less vegetation or the clearance of
vegetation that is less significant or (if relevant) the clearance of
vegetation that has been degraded to a greater extent than the vegetation
proposed to be cleared; and
• the clearance
is undertaken in accordance with a management plan that has been approved by
the Council and that, after taking into account the full extent of clearance
that is to be undertaken on the relevant land, results in a significant
environmental benefit on the property where the building is to be situated, or
the owner of the land (or a person acting on his or her behalf) has, on
application to the Council to proceed with clearing the vegetation in
accordance with this provision, made 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) of the Act;
(ab) if
it is proposed to divide land for use for residential purposes (after taking
into account the construction of roads and other infrastructure) and—
(i)
any development authorisation for the division of the
land and for the use of land for residential purposes under the
Development Act 1993 has been obtained; and
(ii)
—
(A) the Council is satisfied (on the basis
of information provided to the Council by the person seeking the benefit of
this paragraph and such other information as the Council thinks fit) that,
after taking into account the need to preserve biological diversity and taking
into account the needs of the owner of the land, the clearance will be limited
to clearance reasonably required to erect 1 dwelling, and any structure
or other facility that would be reasonably expected to be ancillary to the
dwelling, on each allotment to be created by the division; and
(B) the Council is satisfied (on the basis
of information provided to the Council by the person seeking the benefit of
this paragraph and such other information as the Council thinks fit) that
there is no other practicable alternative that would involve no clearance or
the clearance of less vegetation or the clearance of vegetation that is less
significant or (if relevant) the clearance of vegetation that has been
degraded to a greater extent than the vegetation proposed to be cleared; and
(C) the clearance is undertaken in
accordance with a management plan that has been approved by the Council and,
after taking into account the full nature and extent of clearance that is to
be undertaken on the relevant land and any commitments that have been made
with respect to the establishment, restoration or maintenance of native
vegetation, the Council is satisfied that there will be a significant
environmental benefit on the land being divided or within the same region of
the State, or the owner of the land (or a person acting on his or her behalf)
has, on application to the Council to proceed with clearing the vegetation in
accordance with this provision, made a payment into the Fund or, if the
Council is satisfied that it is appropriate in the circumstances, agreed to
make a payment into the Fund, of an amount considered by the Council to be
sufficient to achieve a significant environmental benefit which outweighs the
value of retaining the vegetation;
(b) if
it is proposed to erect a building or a structure or other facility that is
ancillary to a building, other than a dwelling or a structure or other
facility that is ancillary to a dwelling, and—
(i)
any development authorisation for the erection of the
building or structure or other facility required by or under the Development
Act 1993 has been obtained; and
(ii)
the vegetation—
(A) does not comprise or form part of a
stratum of native vegetation that is substantially intact; and
(B) except where the building is within a
tourist accommodation, business, centre, commerce, commercial, industrial,
industry or office zone under the relevant Development Plan, does not include
vegetation of the genus Eucalyptus with a stem diameter at 300 millimetres
above the ground of 200 millimetres or more, or other vegetation with a stem
diameter at the lowest point of the stem above ground level of 100 millimetres
or more;
(c)
if—
(i)
the clearance is incidental to a proposed development to
which section 48 of the Development Act 1993 applies; and
(ii)
an environmental impact statement, public environmental
report or development report, and an Assessment Report, relating to the
development have been prepared under that Act; and
(iii)
the Minister responsible for the administration of the
Development Act 1993 referred the environmental impact statement, public
environmental report or development report to the Native Vegetation Council
for comment and report and—
(A) the Council provided comments which
were included (wholly or substantially) in the relevant Assessment Report; or
(B) the Council failed to provide comments
within 8 weeks after receiving the Minister's invitation for comment and
report; and
(iv)
the Governor has granted his or her consent to the
proposed development under section 48 of the Development Act 1993 ; and
(v)
the clearance is undertaken in accordance with that
consent; and
(vi)
the clearance is undertaken in accordance with a
management plan that has been approved by the Council that results in a
significant environmental benefit on the property where the development is
being undertaken, or the owner of the land (or a person acting on his or her
behalf) has, on application to the Council to proceed with clearing the
vegetation in accordance with this provision, made 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) of the Act;
(d)
if—
(i)
—
(A) the clearance is incidental to the
construction or expansion of a building or infrastructure and the Minister
has, by instrument in writing, declared that he or she is satisfied that the
clearance is in the public interest; or
(B) the clearance is required in connection
with the provision of infrastructure or services to a building or proposed
building, or to any place; and
(ii)
any development authorisation required by or under the
Development Act 1993 has been obtained; and
(iii)
the Council is satisfied (on the basis of information
provided to the Council by the person seeking the benefit of this paragraph
and such other information as the Council thinks fit) that, after taking into
account the need to preserve biological diversity and the nature and purposes
of any proposed building or infrastructure that is yet to be constructed, the
proposed site of the building or infrastructure is the most suitable that is
available; and
(iv)
the Council is satisfied (on the basis of information
provided to the Council by the person seeking the benefit of this paragraph
and such other information as the Council thinks fit) that there is no other
practicable alternative that would involve no clearance or the clearance of
less vegetation or the clearance of vegetation that is less significant or (if
relevant) the clearance of vegetation that has been degraded to a greater
extent than the vegetation proposed to be cleared; and
(v)
the clearance is undertaken in accordance with a standard
operating procedure determined or approved by the Council for the purposes of
this provision or a management plan that has been approved by the Council, and
either—
(A) there will be a significant
environmental benefit on the property where the clearance is being undertaken
or within the same region of the State; or
(B) either—
• the owner of
the land (or a person acting on his or her behalf); or
• a person
connected with the construction or expansion of the building or
infrastructure, or the provision of the infrastructure or services (as the
case requires),
has, on application to the Council to proceed with clearing the vegetation in
accordance with this provision, made 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) of the Act;
(da)
if—
(i)
the clearance is incidental to proposed development to be
undertaken on land; and
(ii)
any development authorisation required by or under the
Development Act 1993 has been obtained; and
(iii)
the Council is satisfied (on the basis of information
provided to the Council by the person seeking the benefit of this paragraph
and such other information as the Council thinks fit)—
(A) that the vegetation is not significant
(including by taking into account the scale or nature of surrounding
vegetation and relevant guidelines prepared and published by the Council); and
(B) that there is no other practicable
alternative that would involve no clearance or the clearance of less
vegetation; and
(iv)
the clearance is undertaken in accordance with a
management plan that has been approved by the Council that results in a
significant environmental benefit on the property where the relevant
development is to be undertaken, or the owner of the land (or a person acting
on his or her behalf) has, on application to the Council to proceed with
clearing the vegetation in accordance with this provision, made 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) of the Act;
(e)
if—
(i)
the clearance is incidental to the repair or maintenance
work of the Crown; and
(ii)
the person undertaking the clearance—
(A) has given at least 10 business days
notice in writing outlining the proposed clearance to a person who has the
care, control or management of the land before commencing the clearance
(unless the land is under the care, control or management of the Crown); or
(B) is acting in accordance with a standard
operating procedure determined or approved by the Council for the purposes of
this provision; or
(C) is acting in a situation of urgency
that requires action without delay; and
(iii)
the person undertaking the clearance complies with any
guidelines relating to the protection of native vegetation from the spread of
plant diseases or noxious weeds, or from unnecessary damage during the
performance of any work, prepared by the Council in accordance with section 25
of the Act,
(and the operation of this paragraph extends to vegetation on land that is
subject to a heritage agreement);
(f)
if—
(i)
—
(A) the clearance is being undertaken as
part of the duty of an electricity entity under Part 5 of the
Electricity Act 1996 ; or
(B) the clearance is incidental to any
repair or maintenance work of an electricity entity within the meaning of the
Electricity Act 1996 ; and
(ii)
the person undertaking the clearance—
(A) is acting in accordance with the
principles of vegetation clearance under the Electricity Act 1996 ; or
(B) has given at least 10 business days
notice in writing outlining the proposed clearance to a person who has the
care, control or management of the land before commencing the clearance
(unless the land is under the care, control or management of the electricity
entity); or
(C) is acting in accordance with a standard
operating procedure determined or approved by the Council for the purposes of
this provision; or
(D) is acting in a situation of urgency
that requires action without delay; and
(iii)
the person undertaking the clearance complies with any
guidelines relating to the protection of native vegetation from the spread of
plant diseases or noxious weeds, or from unnecessary damage during the
performance of any work, prepared by the Council in accordance with section 25
of the Act,
(and the operation of this paragraph extends to vegetation on land that is
subject to a heritage agreement);
(g)
if—
(i)
the clearance is incidental to the repair or maintenance
of any infrastructure; and
(ii)
the person undertaking the clearance—
(A) has given at least 10 business days
notice in writing outlining the proposed clearance to a person who has the
care, control or management of the land before commencing the clearance
(unless the land is under the care, control or management of the person who is
responsible for the infrastructure); or
(B) in acting in accordance with a standard
operating procedure determined or approved by the Council for the purposes of
this provision; or
(C) is acting in a situation of urgency
that requires action without delay; and
(iii)
the person undertaking the clearance complies with any
guidelines relating to the protection of native vegetation from the spread of
plant diseases or noxious weeds, or from unnecessary damage during the
performance of any work, prepared by the Council in accordance with section 25
of the Act,
(and the operation of this paragraph extends to vegetation on land that is
subject to a heritage agreement);
(h)
if—
(i)
the clearance is incidental to work being undertaken by
or on behalf of the Commissioner of Highways; and
(ii)
except where the clearance is incidental to repair or
maintenance work, there is no other practicable alternative that would involve
no clearance or the clearance of less vegetation or the clearance of
vegetation that is less significant or (if relevant) the clearance of
vegetation that has been degraded to a greater extent than the vegetation
proposed to be cleared; and
(iii)
either—
(A) the clearance is undertaken in
accordance with a standard operating procedure determined or approved by the
Council for the purposes of this provision or a management plan that has been
approved by the Council, and either there will be a significant environmental
benefit at the site of the relevant work or within the same region of the
State, or the Commissioner of Highways or another person undertaking the work
has, on application to the Council to proceed with clearing the vegetation in
accordance with this provision, made 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) of the Act;
or
(B) the clearance is incidental to repair
or maintenance work and the person undertaking the clearance—
• has given at
least 10 business days notice in writing outlining the proposed clearance to a
person who has the care, control or management of the land before commencing
the clearance (unless the land is under the care, control or management of the
Commissioner of Highways); or
• is acting in
accordance with a standard operating procedure determined or approved by the
Council for the purposes of this provision; or
• is acting in a
situation of urgency that requires action without delay; and
(iv)
the person undertaking the clearance complies with any
guidelines relating to the protection of native vegetation from the spread of
plant diseases or noxious weeds, or from unnecessary damage during the
performance of any work, prepared by the Council in accordance with section 25
of the Act;
(i)
if the clearance is incidental to the repair or
maintenance of an existing dam;
(j)
if—
(i)
the clearance is incidental to the lawful construction of
a new dam that will cover—
(A) in areas designated by the Council, by
notice in the Gazette, for the purposes of this provision—less than
500 square metres in surface area when full;
(B) in other areas of the State—less
than 200 square metres in surface area when full; and
(ii)
the vegetation to be cleared comprises trees with a stem
diameter at the lowest point on the stem above ground level of 150 millimetres
or more; and
(iii)
the land on which the vegetation is situated has been
cleared of all other native vegetation and has been maintained during the
immediately preceding 5 years for cultivation or pasture; and
(iv)
the vegetation is not of a class specified in Schedule 1;
and
(v)
in the case of a dam within the ambit of
subparagraph (i)(A) that will cover 200 square metres or more in
surface area when full—the Council is satisfied (on the basis of
information provided to the Council by the person seeking the benefit of this
paragraph and such other information as the Council thinks fit) that, after
taking into account the need to preserve biological diversity and taking into
account the needs of the owner of the land, the site of the dam is the most
suitable that is available;
(ja)
if—
(i)
the clearance is incidental to the lawful construction or
expansion of a dam on pastoral land (as defined in section 3(1) of the
Act); and
(ii)
the vegetation is not of a class specified in Schedule 1;
and
(iii)
the Council is satisfied (on the basis of information
provided to the Council by the person seeking the benefit of this paragraph
and such other information as the Council thinks fit) that, after taking into
account the need to preserve biological diversity and taking into account the
needs of the owner of the land, the site for the dam is the most suitable that
is available; and
(iv)
the Council is satisfied (on the basis of information
provided to the Council by the person seeking the benefit of this paragraph
and such other information as the Council thinks fit) that there is no other
practicable alternative that would involve no clearance or the clearance of
less vegetation or the clearance of vegetation that is less significant or (if
relevant) the clearance of vegetation that has been degraded to a greater
extent than the vegetation proposed to be cleared; and
(v)
the clearance is undertaken in accordance with a
management plan that has been approved by the Council and that results in a
significant environmental benefit on the relevant property, or the owner of
the land (or a person acting on his or her behalf) has, on application to the
Council to proceed with clearing the vegetation in accordance with this
provision, made 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) of the Act;
(k) if
the vegetation is growing or situated—
(i)
not more than 20 metres from a prescribed building;
or
(ii)
not more than 5 metres from a prescribed structure;
Note—
The clearance of native vegetation under this paragraph is limited by
regulation 6(1).
(l)
if—
(i)
a plant comprising native vegetation exceeds 2 metres in
height; and
(ii)
there is a danger that the plant will fall over or a limb
or some other part of the plant will fall from it because of disease, wind
damage or any other cause; and
(iii)
there is a real risk of personal injury or damage to
property if that occurs; and
(iv)
it is not reasonably practicable to avoid the risk by
avoiding the vicinity in which the plant is growing or is situated; and
(v)
the state of the plant has been assessed by a person with
expertise in the area of plant health, or by any other person acting in an
emergency situation or in any other situation that gives rise to an immediate
risk of personal injury or damage to property; and
(vi)
the clearance is confined to removing the limb or other
part of the plant causing the danger and only extends to destroying the plant
if that is necessary to remove the existing danger,
(and the operation of this paragraph extends to vegetation on land that is
subject to a heritage agreement);
(la)
if—
(i)
the clearance involves the limb of a plant that is
overhanging a building; and
(ii)
the clearance is confined to removing the limb (or a part
of the limb to any point up to the trunk of the plant),
(and the operation of this paragraph extends to vegetation on land that is
subject to a heritage agreement);
(lb)
if—
(a) the
clearance of the vegetation is necessary to protect public safety; and
(b) the
clearance is undertaken in accordance with a written approval of a person or
body authorised by the Minister, by notice in the Gazette, for the purpose of
this paragraph,
(and the operation of this paragraph extends to vegetation on land that is
subject to a heritage agreement);
(p) by
the State Co-ordinator or an authorised officer acting under section 15 of the
State Disaster Act 1980 (and the operation of this paragraph extends to
vegetation on land that is subject to a heritage agreement);
(q)
if—
(i)
the clearance is solely for the purpose of providing
firewood for use by the owner of the land on which the vegetation was growing
or was situated for the purpose of domestic heating or cooking; and
(ii)
the quantity of firewood provided by the clearance when
aggregated with the quantity of firewood (if any) previously provided by
clearance under this paragraph (or a previous corresponding paragraph) and not
yet burnt does not exceed 6 cubic metres when calculated over the immediately
preceding period of 2 years; and
(iii)
the vegetation has a stem diameter at 300 millimetres
from the base of the plant of 200 millimetres or less; and
(iv)
in the case of living vegetation—the clearance does
not kill the vegetation, does not prevent regrowth, and is undertaken at least
300 millimetres above the base of the plant; and
(v)
either—
(A) the vegetation is not of a class
specified in Schedule 1; or
(B) the clearance complies with guidelines
prepared by the Council for the purposes of this provision;
(r)
if—
(i)
the clearance is solely for the purpose of—
(A) providing fence posts for the
construction of permanent fencing on the land on which the vegetation was
growing or was situated (or on other land owned by the owner of the land on
which the vegetation was growing or was situated) for the purpose of
controlling access by people or the movement of animals and is consistent with
practices undertaken on the land over the immediately preceding period of 25
years; or
(B) repairing an existing fence on the land
on which the vegetation was growing or was situated (or on the other land
owned by the owner of the land on which the vegetation was growing or was
situated) for the purpose of controlling access by people or the movement of
animals; and
(ii)
the quantity of fence posts provided by the clearance
when aggregated with the quantity of fence posts (if any) previously provided
by clearance under this paragraph (or a previous corresponding paragraph) and
not yet used does not exceed the quantity required by the plans the owner has
when the clearance occurs for the construction of fencing on his or her land
in the period of 2 years from the time of clearance; and
(iii)
the vegetation has a stem diameter at 300 millimetres
from the base of the plant of 200 millimetres or less; and
(iv)
in the case of living vegetation—
(A) the vegetation was growing on land
subject to a pastoral lease under the
Pastoral Land Management and Conservation Act 1989 the terms of which
explicitly provide that vegetation on the land may be cleared for the sole
purpose of providing fence posts; or
(B) the clearance does not kill the
vegetation, does not prevent regrowth and is undertaken at least 300
millimetres above the base of the plant; and
(v)
the clearance has been undertaken in accordance with a
management plan that has been approved by the Council; and
(vi)
either—
(A) the vegetation is not of a class
specified in Schedule 1; or
(B) the clearance complies with guidelines
prepared by the Council for the purposes of this provision;
(s) if
the clearance is for the purpose of providing a strip of cleared land of not
more than 5 metres in width on either side or both sides of an existing fence
or of a fence in the course of construction to provide access for the purpose
of maintaining or establishing the fence and—
(i)
the fence is reasonably required to control access by
people or the movement of animals; and
(ii)
the clearance is required to give reasonable access to
the fence and is limited to the extent reasonably required to achieve that
access; and
(iii)
there is no other practicable alternative (including, in
the case of a new fence, to the position of the fence) that would involve no
clearance or the clearance of less vegetation or the clearance of vegetation
that is less significant or (if relevant) the clearance of vegetation that has
been degraded to a greater extent than the vegetation proposed to be cleared,
(and the operation of this paragraph extends to vegetation on land that is
subject to a heritage agreement but does not apply to vegetation on a road
reserve);
(t) if
the clearance is for the purpose of establishing or maintaining an existing
track that is not more than 5 metres in width for use by vehicles having at
least 4 wheels and—
(i)
the track is reasonably required to provide access; and
(ii)
the clearance is limited to the extent reasonably
required to achieve the relevant purpose; and
(iii)
there is no other practicable alternative (including, in
the case of a new track, to the position of the track) that would involve no
clearance or the clearance of less vegetation or the clearance of vegetation
that is less significant or (if relevant) the clearance of vegetation that has
been degraded to a greater extent than the vegetation proposed to be cleared,
(but this paragraph does not apply to vegetation on a road reserve);
(u) if
the clearance is for the purpose of establishing or maintaining a walking
track that is not more than 1 metre in width and—
(i)
the track is used, or is genuinely expected to be used,
by pedestrians; and
(ii)
there is no other practicable alternative (including, in
the case of a new track, to the position of the track) that would involve no
clearance or the clearance of less vegetation or the clearance of vegetation
that is less significant or (if relevant) the clearance of vegetation that has
been degraded to a greater extent than the vegetation proposed to be cleared;
and
(iii)
the person undertaking the clearance complies with any
guidelines determined or approved by the Council for the purposes of this
provision,
(but this paragraph does not apply to vegetation on a road reserve);
(y) by,
or on behalf of, a local council if—
(i)
the vegetation is growing on a road reserve in the area
of the council; and
(ii)
the person undertaking the clearance complies with a
management plan relating to the clearance prepared by the local council and
approved by the Council or, if no such plan has been prepared and approved,
with any guidelines prepared by the Council in accordance with section 25 of
the Act relating to the clearance;
(zb) if
the clearance comprises the taking of—
(i)
a specimen; or
(ii)
a cutting for propagation; or
(iii)
such part of a plant as is required in order to obtain
the seeds of the plant,
and does not cause substantial damage to the plant;
(zc)
if—
(i)
the clearance is incidental to exploratory operations
authorised under the Mining Act 1971 or the Petroleum Act 2000 ; and
(ii)
the clearance is undertaken in accordance with accepted
industry environmental management practices for facilitating the regrowth of
native vegetation, recognised by the Council for the purposes of this
subparagraph; and
(iii)
there is no other practicable alternative that would
involve no clearance or the clearance of less vegetation or the clearance of
vegetation that is less significant or (if relevant) the clearance of
vegetation that has been degraded to a greater extent than the vegetation
proposed to be cleared,
(and the operation of this paragraph extends to vegetation on land that is
subject to a heritage agreement);
(zd)
if—
(i)
the clearance is incidental to operations authorised
under a Mining Act; and
(ii)
—
(A) in the case of operations authorised
under a Mining Act (other than the Petroleum Act 2000 ), the clearance is
undertaken in accordance with a management plan under that Act and the Council
has signified that, as a result of work undertaken in accordance with that
plan, there will be a significant environmental benefit on the site of the
operations or within the same region of the State, or the person undertaking
the operations has, on application to the Council to proceed with clearing the
vegetation in accordance with this provision, made 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) of the Act;
and
(B) in the case of operations authorised
under the Petroleum Act 2000 , the clearance is undertaken in accordance
with a statement of environmental objectives under that Act and the Council
has signified that, as a result of work undertaken in accordance with that
statement, there will be a significant environmental benefit at the site of
the operations or within the same region of the State, or the person
undertaking the operations has, on application to the Council to proceed with
clearing the vegetation in accordance with this provision, made 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)
of the Act,
(and the operation of this paragraph extends to vegetation on land that is
subject to a heritage agreement);
(zda)
if—
(i)
the clearance is incidental to operations authorised
before 25 August 2003 under a Mining Act; and
(ii)
the clearance—
(A) is clearance that is envisaged or
authorised by or under a program or approval under the relevant Act; or
(B) is clearance that would reasonably be
expected to have been required under the authorisation under the relevant Act
taking into account the circumstances that existed immediately before
25 August 2003;
(ze) if
the clearance is incidental to mining operations at a private mine at which
mining operations have not been discontinued for a period exceeding 12 months
at any time after 21 November 1984 (and the operation of this paragraph
extends to vegetation on land that is subject to a heritage agreement);
(zf)
if—
(i)
the land on which the vegetation is situated has been
used for cultivation, pasture or forestry within 5 years immediately before
the proposed clearance occurs; and
(ii)
the clearance is necessary to maintain the land so that
it can continue to be used for cultivation, pasture or forestry to the extent
to which it had been used for that purpose within the immediately preceding 5
years; and
(iii)
the vegetation to be cleared consists only of plants or
parts of plants that have grown or have regrown in the immediately preceding 5
years; and
(iv)
either—
(A) the vegetation has a stem diameter at
the lowest point on the stem above ground level of 150 millimetres or less; or
(B) the vegetation is of the genus
Xanthorrhoea ;
(zfa)
if—
(i)
the vegetation to be cleared consists of plants that have
regrown over a period of time after previous clearance undertaken in
accordance with the provisions of the Act or these regulations; and
(ii)
the land on which the vegetation is situated has been
consistently used for agricultural purposes as part of a commercial enterprise
since the land was lawfully cleared; and
(iii)
the clearance is undertaken in accordance with a
management plan that has been approved by the Council;
(zfb)
if—
(i)
the Council is satisfied (on the basis of information
provided to the Council by the person seeking the benefit of this paragraph
and such other information as the Council thinks fit)—
(A) that the vegetation to be cleared is
situated on land that has been the subject of regional land degradation
processes over a period of time and consists of plants that have grown on the
land due to those processes; and
(B) that the land on which the vegetation
is situated is being used, or has previously been used, for agricultural
purposes but that use has been reduced or discontinued (as the case may be)
due to the degradation; and
(C) that the clearance is being undertaken
so as to enable the land to be used for agricultural purposes; and
(ii)
the clearance is undertaken in accordance with a
management plan that has been approved by the Council;
(zg)
if—
(i)
the native vegetation to be cleared comprises plants that
are used, or are to be used, for grazing by domestic animals; and
(ii)
the purpose of the clearance is to maintain the value of
the native vegetation for the purpose of pasture; and
(iii)
the clearance is in accordance with practices used during
the previous 10 years on the land on which the vegetation is growing for the
purpose of maintaining pasture; and
(iv)
the clearance is undertaken in accordance with a
management plan that has been prepared by, or on behalf of, the owner of the
land on which the vegetation is growing or by the soil conservation board for
the soil conservation district in which the land is situated and has been
approved by the Council;
(zh) by
grazing domestic stock on land in a manner and at a rate that will not cause
permanent degradation of the native vegetation on the land but only if—
(i)
the manner and rate of grazing is consistent with the
manner in which, and the rate at which, the land has been grazed by domestic
stock of the same species during the previous 10 years; or
(ii)
—
(A) the owner of the land has prepared a
management plan that applies to grazing of vegetation on the land by the
relevant species of animal; and
(B) the owner of the land has satisfied the
Council that the management plan complies with guidelines that have been
prepared by the Council in accordance with section 25 of the Act; and
(C) the Council has given its approval to
the management plan and, where the land on which the vegetation is growing is
pastoral land, the Pastoral Board has also given its approval to the
management plan; and
(D) the grazing occurs in accordance with
the management plan;
(zi) if
the purposes of the clearance is to preserve or enhance ecological processes
and—
(i)
—
(A) the owner of the land has prepared a
management plan that provides for monitoring the effects of the clearance; and
(B) the owner of the land has satisfied the
Council that the management plan complies with guidelines that have been
prepared by the Council in accordance with section 25 of the Act; and
(C) the Council has given its approval to
the management plan; and
(D) the clearance is undertaken in
accordance with the management plan; or
(ii)
the clearance is undertaken in accordance with guidelines
that apply to the clearance that have been prepared by the Council in
accordance with section 25 of the Act,
(and the operation of this paragraph extends to vegetation on land that is
subject to a heritage agreement);
(zj) if
the vegetation is causing land management problems because it is detrimentally
affecting other native vegetation, or is growing on land previously cleared of
native vegetation, and—
(i)
—
(A) the owner of the land has prepared a
management plan relating to the proposed clearance; and
(B) the owner of the land has satisfied the
Council that the management plan complies with guidelines that have been
prepared by the Council in accordance with section 25 of the Act; and
(C) the Council has given its approval to
the management plan; and
(D) the clearance is undertaken in
accordance with the management plan; or
(ii)
the clearance is undertaken in accordance with guidelines
that have been prepared by the Council in accordance with section 25 of the
Act;
(zk)
if—
(i)
it is not reasonably practicable to comply with an
obligation under the Natural Resources Management Act 2004 to destroy or
control animals or plants without at the same time destroying, damaging or
otherwise clearing native vegetation; and
(ii)
the person undertaking the clearance complies with
guidelines relating to the clearance prepared by the Council in accordance
with section 25 of the Act,
(and the operation of this paragraph extends to vegetation on land that is
subject to a heritage agreement but does not apply to vegetation on a road
reserve);
(zl)
if—
(i)
the land on which the vegetation is situated is in the
County of Cardwell or within the hundreds of Stirling, Willalooka, Duffield,
Landseer, Peacock, Marcollat, Minecrow, Woolumbool, Townsend, Lochaber,
Murrabinna, Spence or Joyce; and
(ii)
the clearance is to provide cleared land—
(A) for the purposes of the construction or
maintenance of water management works within the meaning of the
South Eastern Water Conservation and Drainage Act 1992 by, or on behalf
of, the South Eastern Water Conservation and Drainage Board pursuant to
section 34 of that Act; or
(B) for the purposes of the implementation
of the Project under the
Upper South East Dryland Salinity and Flood Management Act 2002 by, or on
behalf of, the relevant Minister under that Act; and
(iii)
the Board, the relevant Minister or a person acting on
behalf of the Board or that Minister has prepared a management plan in
relation to the clearance of the vegetation and the Native Vegetation Council
has given its approval to the plan; and
(iv)
the clearance is undertaken in accordance with the
management plan;
(zm)
if—
(i)
the land on which the vegetation is situated is in the
County of Flinders or Robinson; and
(ii)
the clearance is necessary to preserve or augment an
underground water supply of a city or town; and
(iii)
the clearance has been requested by the local council;
and
(iv)
the owner of the land or the person who has the care,
control and management of the land has prepared a management plan in relation
to the clearance of the vegetation and the Native Vegetation Council has given
its approval to the plan; and
(v)
the clearance is undertaken in accordance with the
management plan.
(1a) For the purposes
of subregulation (1)(d), infrastructure includes, unless the contrary
intention appears—
(a)
flood mitigation works;
(b) an
airstrip;
(c) a
shipping channel.
(1b) For the purposes
of subregulation (1)(da), the Council must ensure that guidelines are
prepared in accordance with the procedures that apply to guidelines under
section 25 of the Act.
(2) A notice
authorising a person for the purposes of subregulation (1)(lb) may be of
general application or vary in its application according to prescribed
factors.
(3) The Minister may,
by subsequent notice in the Gazette, vary or revoke a notice under
subregulation (1)(lb).
(7) The Council may,
by notice in the Gazette, declare that subparagraph (ii) of
paragraph (v) of subregulation (1) applies in relation to an area of
a mallee scrub community identified in the notice and may, by subsequent
notice in the Gazette, vary or revoke such a declaration.
(7a) To avoid doubt,
subregulation (1)(zc), (zd) and (zda) does not apply in relation to
mining operations at a private mine.
(8) A management plan
under subregulation (1)(zfa) must make express provision for a review of
the operation of the management plan to be conducted from time to time.
(9) The Council must,
in considering whether the requirements of subregulation (1)(zfb)(i) have
been satisfied in a particular case, seek and consider the advice of the
regional NRM board for the NRM region where the relevant land is situated.
(10) The Council may,
in determining whether there is a practicable alternative to a particular
course of action under consideration under this regulation, take into account
the cost of any alternative.
(11) For the purposes
of this regulation (and without limiting any other provision), the Council
may—
(a)
require a person seeking the benefit of this regulation for a particular
purpose to provide to the Council such information as the Council may
reasonably require to determine the matter;
(b)
direct that any information to be provided to the Council be in a form
determined by the Council (after consulting with any relevant person as the
Council thinks fit);
(c)
direct that a person comply with any other requirement determined by the
Council (including a requirement as to the form or content of any plan or
other document).
(12) In this
regulation—
"Building Code" has the same meaning as in the Development Act 1993 ;
"prescribed building" means—
(a) a
building within the meaning of the Development Act 1993 (other than a
Class 7A or 10B building under the Building Code ) that is permanently
fixed to land; and
(b) a
building of a kind contemplated by paragraph (a) that is in the course of
construction if the foundations, a concrete slab or other footings have been
completed; and
(c) any
other building or structure of a class declared by the Minister by notice in
the Gazette to be included in the ambit of this definition,
but does not include any building or structure of a class declared by the
Minister by notice in the Gazette to be excluded from the ambit of this
definition;
"prescribed structure" means—
(a) a
structure that is permanently fixed to land and used for, or in relation to,
1 or more of the following purposes:
(i)
primary production;
(ii)
the housing or feeding of animals;
(iii)
the storage of fodder;
(iv)
the storage of vehicles or vessels;
(v)
any other purpose declared by the Minister by notice in
the Gazette to be included within the ambit of this paragraph; and
(b) any
other structure of a class declared by the Minister by notice in the Gazette
to be included within the ambit of this definition,
but does not include—
(c) a
prescribed building; and
(d) any
structure of a class declared by the Minister by notice in the Gazette to be
excluded from the ambit of this definition.
(13) The Minister may,
by subsequent notice in the Gazette, vary or revoke a notice under
subregulation (12).