Changes to the vegetation management framework in Queensland – 7th June 2013

7 June 2013

Holding Redlich – Update (This is the simplest straight forward assessment of the Changes to Vegetation I have received to date)

Agribusiness & Rural Industries

 CHANGES TO THE VEGETATION MANAGEMENT FRAMEWORK IN QUEENSLAND

Overview

The Vegetation Management Framework Amendment Act 2013 (the Act) was passed by Parliament on 21 May 2013. The

Act aims to significantly reform the vegetation management framework in Queensland by:

(a)   reducing red tape and the regulatory burden on landholders, business and government; (b)  simplifying and streamlining the vegetation management framework;

(c)   supporting Queensland’s key economic pillars of construction, resources, agriculture and tourism; and

(d)  maintaining sustainable vegetation clearing practices to protect native vegetation.

The reforms are intended to pave the way for the development of new agricultural areas by providing landowners with the opportunity to clear vegetation without the regulatory burden that exists under the current system. Accordingly, the Act is viewed as a vital component of the Newman Government’s aim of doubling the value of agricultural production in Queensland by 2040.

While the changes are particularly relevant to farmers, all landowners ought to be aware of the proposed new rules

for vegetation management, as the Act also aims to simplify the mapping of vegetation and streamline assessment for vegetation clearing generally through:

(a)   the removal of the regrowth regulations;

(b)  the creation of self assessable clearing codes to remove the need for an application to be made in certain circumstances;

(c)     the introduction of a single vegetation map incorporating information that is currently shown on various maps produced by the Department of Natural Resources and Mines (the DNRM); and

(d)  potentially locking in regulated and non-regulated vegetation to provide landowners with greater certainty when developing long term property plans.

What are the proposed changes?

The vegetation management framework in operation prior to the Act commenced in 2000, so that the clearing of native vegetation is regulated under the Vegetation Management Act 1999 (the VMA) and the Integrated Development Assessment System under the Sustainable Planning Act 2009 (the SPA). The Act makes a number of changes to the framework involving the removal of changes made to the framework in 2009, including the removal of regulations that restrict the clearing of mature regrowth vegetation that had not been cleared since 31 December 1989 (“high value regrowth”).

Other major changes introduced under the Act include:

(a)   the introduction of new clearing purposes under the VMA to expand the range of circumstances in which an application can be made for a development permit for vegetation clearing;

(c)   the simplification of State-wide vegetation maps; and

(d)  changes to the enforcement, investigation and offence provisions under the VMA.

The removal of  high value regrowth vegetation regulations

The Act removes high value regrowth vegetation regulations from freehold and indigenous land. Previously, high value regrowth vegetation (that is, regrowth vegetation in a regional ecosystem classified as ‘endangered’, ‘of concern’ or ‘least concern’ or regrowth which has not been cleared since 31 December 1989) on freehold and indigenous land was protected.  However, the Act allows clearing of vegetation on freehold and indigenous land with the effect that high value regrowth vegetation will only be protected on –

(a)   leasehold land for agricultural or grazing purposes; and

(b)  along water catchments in priority reef areas.

The introduction of  new  clearing purposes

Previously, a permit to clear vegetation would only be granted if the clearing was for one of the purposes specified in

Section 22 of the VMA including, but not limited to, fodder harvesting, extractive industry and pest control. The Act introduces three new clearing purposes to allow –

1.    Necessary environmental clearing meaning the clearing of vegetation which is necessary to:

(a) restore the ecological and environmental condition of land (for instance, stabilising banks of watercourses, works to rehabilitate eroded areas, works to prevent erosion of land or for ecological fire management);

(b)   divert existing natural channels in a way that replicates the existing form of the natural channels;

(c)   prepare for the likelihood of a natural disaster (for example, removing silt to mitigate flooding); and

(d)   remove contaminants from land.

2.     High value agricultural clearing which means clearing vegetation to establish, cultivate and harvest crops.  This includes clearing for annual and perennial horticulture and broadacre cropping but does not include clearing to establish and cultivate native or introduced pastures for the grazing of livestock or to establish plantation forestry; and

3.     Irrigated high value agricultural clearing which means clearing carried out to establish, cultivate and harvest crops or pasture that will be supplied with water by artificial means.  This includes clearing for annual and perennial horticulture and broadacre cropping and pasture which requires irrigation (e.g. dairy farms), however plantation forestry is specifically excluded.

The creation of  self  assessable clearing codes

The Act also seeks to reduce the regulatory burden on landholders by empowering the Minister to make self assessable vegetation clearing codes which are designed to operate in the same manner as self assessable development codes under planning schemes.  Provided landowners notify DNRM of the proposed clearing activity and then comply with the applicable self assessable clearing code, landowners will be able to undertake certain clearing activities without the need for a development permit.

It is anticipated that the first codes to be developed will be for routine rural land management activities including weed and pest control, managing encroachment, fodder harvesting and thinning.  The Act also provides the Minister with a broad discretionary power to make self assessable clearing codes for any other vegetation clearing matters considered necessary or desirable. However, it may be some time before the self assessable clearing codes commence as these codes must first be developed and approved before they can take effect.

Currently, vegetation mapping information is shown on three separate maps – the regional ecosystem map, the remnant vegetation map and the regrowth vegetation map. The Act aims to simplify this system by creating an overarching regulated vegetation management map which incorporates the information currently shown on these three separate maps. The new map will also ‘lock in’ regulated and non-regulated vegetation areas to provide greater certainty for landowners when developing long term property plans.

Changes to enforcement, investigation and offence provisions

The final reforms introduced by the Act are aimed at providing greater fairness and balance in relation to the enforcement and compliance provisions of the VMA. This includes changing the onus of proof for vegetation clearing offences whereby the clearing of land will no longer be taken to have been done by the occupier of that land in the absence of evidence to the contrary. Other changes are designed to provide a more equitable and consistent approach to sentencing in relation to unlawful clearing of vegetation offences.

Progress of  the Act

The changes to the enforcement and compliance provisions of the VMA commenced operation on the date of assent, being 23 May 2013. However, the removal of the regrowth regulations, the introduction of the new clearing purposes and the creation of the self assessable clearing codes are not expected to come into effect until towards the end of 2013 on

a date yet to be proclaimed. In the meantime, the framework in place prior to the Act will continue to apply.

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. Details of any further developments will be available on our website as and when they occur, including the date of commencement  for the balance of the amendments.

For more information, contact:

Kelly Alcor n | Partner

T +61 7 3135 0696

E kelly.alcorn@holdingredlich.com

Brian Healey | Partner | National Head  of Agribusiness & Rural Industries

T +61 7 3135 0682

E brian.healey@holdingredlich.com