Threatened Species Conservation Act 1995 No 101
Current version for 17 October 2014 to date (accessed 29 November 2014 at 08:39)
Part 6Division 1

Division 1 Grant of licences

91   Licence to harm or pick threatened species, populations or ecological communities or damage habitat

(1)  The Director-General may grant a licence authorising a person to take action likely to result in one or more of the following:
(a)  harm to any animal that is of, or is part of, a threatened species, population or ecological community,
(b)  the picking of any plant that is of, or is part of, a threatened species, population or ecological community,
(c)  damage to critical habitat,
(d)  damage to habitat of a threatened species, population or ecological community.
(2)  A general licence may be issued under section 120 of the National Parks and Wildlife Act 1974 to authorise an action referred to in subsection (1) only:
(a)  for the welfare of an animal, or
(b)  if there is a threat to life or property.
(3)  Subsection (2) does not limit the purposes for which a licence may be issued under this section.
Note. For example, a licence may be issued under this section to authorise an Aboriginal person or persons to harm animals or pick plants for cultural purposes.

92   Application for licence

(1)  An application for a licence must be in a form approved, and be accompanied by an application fee of the amount prescribed, by the Director-General.
(2)  If the action proposed to be taken under the authority of the licence is on land that is critical habitat, the application must be accompanied by a species impact statement prepared in accordance with Division 2.
(3)  If the action proposed is not on land that is critical habitat, the application must include the following:
(a)  details of the types, and condition, of habitats in and adjacent to the land to be affected by the action,
(b)  particulars of any known records of a threatened species in the same or similar known habitats in the locality,
(c)  details of any known or potential habitat for a threatened species on the land to be affected by the action,
(d)  details of the amount of such habitat to be affected by the action proposed in relation to the known distribution of the species and its habitat in the locality and region,
(e)  an assessment of the likely nature and intensity of the effect of the action on the life cycle and habitat of the species,
(f)  details of possible measures to avoid or ameliorate the effect of the action.
(4)  An applicant may lodge a species impact statement with an application even if the action proposed is not on land that is critical habitat. In that event, the application need not include the information referred to in subsection (3).

93   Payment of licence processing fee

(1)  The Director-General is to levy a processing fee, being not more than the costs (including on-costs) incurred by the National Parks and Wildlife Service in the assessment and processing of a licence application (whether or not the application is successful).
(2)  The fee is recoverable by the Director-General as a debt due to the Crown in a court of competent jurisdiction.
(3)  The Director-General may, before dealing with an application, require the applicant to pay an amount not exceeding one-half of the estimated processing fee.
(4)  The Director-General may reduce the amount of a processing fee levied for any licence application having regard to the following:
(a)  the extent of scientific examination necessary for the processing of the application,
(b)  the adequacy of any species impact statement or environmental impact statement that includes a species impact component supplied by the applicant,
(c)  the capacity of the applicant or persons with whom the applicant is associated to meet the fee levied,
(d)  whether and to what extent the activity sought to be licensed may confer a commercial benefit on the applicant if the licence is granted.
(5)  Before a prospective applicant for a licence lodges an application, the Director-General must advise the applicant of the maximum fee payable in respect of the application.

94   Significant effect on threatened species, populations or ecological communities, or their habitats

(1)  If the action proposed to be taken by the applicant is not on land that is critical habitat and the application is not accompanied by a species impact statement, the Director-General must determine whether the action proposed is likely to significantly affect threatened species, populations or ecological communities, or their habitats.
(2)  For that purpose, the Director-General must take into account the following:
(a)  each of the factors listed in subsection (3),
(b)  any assessment guidelines issued and in force under section 94A.
(3)  The following factors must be taken into account in making a determination under this section:
(a)  in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,
(b)  in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,
(c)  in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:
(i)  is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or
(ii)  is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,
(d)  in relation to the habitat of a threatened species, population or ecological community:
(i)  the extent to which habitat is likely to be removed or modified as a result of the action proposed, and
(ii)  whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and
(iii)  the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,
(e)  whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),
(f)  whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,
(g)  whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.

94A   Assessment guidelines

(1)  The Minister may, by order published in the Gazette, issue guidelines (assessment guidelines) relating to the determination of whether an action is likely to significantly affect threatened species, populations or ecological communities, or their habitats.
(2)  An order under this section (including any order that amends, revokes or replaces such an order) may be made only with the concurrence of the Minister for Planning.

95   Determination by Director-General as to significant effect

(1)  If the Director-General determines that an action proposed by an applicant for a licence is likely to significantly affect threatened species, populations or ecological communities, or their habitats, the Director-General must notify the applicant that, if the application is to proceed, a species impact statement prepared in accordance with Division 2 must be provided.
(2)  If the Director-General determines that an action proposed is not likely to significantly affect threatened species, populations or ecological communities, or their habitats, a licence under this Act is not required and the Director-General must, as soon as practicable after making the determination, issue to the applicant a certificate to that effect.
Note. An action that is not required to be licensed under this Act may however be required to be licensed under the National Parks and Wildlife Act 1974 if it is likely to affect protected fauna or protected native plants or may otherwise constitute an offence under that Act.
(3)  A certificate under subsection (2) may be issued unconditionally or subject to conditions.
Note. Section 133 (4) of the National Parks and Wildlife Act 1974 provides that the holder of such a certificate must not contravene or fail to comply with any condition or restriction attached to the certificate.

96   Publication of licence application

(1)  The Director-General is to keep a register of licence applications made under this Act.
(2)  The Director-General must, within 7 days after receiving a licence application, cause a copy of the application to be placed on the register.
(3)  The register is not to include any information the disclosure of which would contravene the Privacy and Personal Information Protection Act 1998.
(4)  Copies of the register are to be made available for public inspection (free of charge) at the principal office of the National Parks and Wildlife Service and on the internet site maintained by the National Parks and Wildlife Service.
(5)  If the licence application is accompanied by a species impact statement or a species impact statement is provided in response to a notification from the Director-General that a statement is required, the Director-General must cause to be placed in a newspaper circulating throughout the State a notice:
(a)  outlining the nature of the application, and
(b)  specifying the address of the place at which copies of the species impact statement may be inspected or purchased, and
(c)  inviting written submissions within a period of not less than 28 days after the date of the notice.

96A   Sale of copies of species impact statement

(1)  The Director-General may require an applicant for a licence to provide additional copies of a species impact statement that accompanied the application or was provided in response to a notification from the Director-General that a statement is required.
(2)  The Director-General may refuse to grant an application if that direction is not complied with.
(3)  Copies of the species impact statement may be sold by the Director-General to any member of the public for not more than $25 a copy (or such other amount as may be prescribed by the regulations).
(4)  The Director-General must:
(a)  pay the proceeds of sale of copies of the species impact statement to the applicant, and
(b)  return to the applicant any unsold copies of the species impact statement.

97   Matters that Director-General must take into account

(1)  In considering whether to grant or to refuse to grant a licence application, the Director-General must take into account the following:
(a)  any species impact statement,
(b)  any written submissions received concerning the application within the period, and at the address for submissions, specified in the notice,
(c)  the factors specified in sections 10–15,
(d)  any relevant recovery plan or threat abatement plan,
(e)  the principles of ecologically sustainable development,
(f)  whether the action proposed is likely to irretrievably reduce the long-term viability of the species, population or ecological community in the region,
(g)  whether the action proposed is likely to accelerate the extinction of the species or ecological community or place it at risk of extinction.
(2)  The Director-General must also consider the likely social and economic consequences of granting or refusing to grant a licence application.

98   Director-General may request additional information

The Director-General may request the applicant to provide additional information in support of an application for a licence.

99   Determination of licence application

(1)  After considering an application for a licence and accompanying material, the Director-General may:
(a)  grant the application, unconditionally or subject to conditions or restrictions, or
(b)  refuse the application.
(2)  The Director-General must, subject to subsection (3), make a decision about an application within 120 days after the Director-General receives a species impact statement or within such further period as may be agreed with the applicant for the licence.
(3)  The Director-General must not grant an application until the processing fee levied in respect of it has been paid.
(4)  A licence may authorise specified persons in addition to the person to whom the licence is granted to do the things authorised by the licence. In any such case, the specified persons are taken to be the holders of the licence for the purposes of this Act.
(5)  For the avoidance of doubt, it is declared that the Director-General is not a determining authority for the purposes of Part 5 of the Planning Act when granting a licence.

100   Licence may extend to protected fauna or protected native plants

(1)  The Director-General may, in a licence granted under this Part, authorise a person to take action that is likely to result in either or both of the following:
(a)  harm to protected fauna,
(b)  picking of protected native plants.
(2)  In this section, protected fauna and protected native plant have the same meanings as in the National Parks and Wildlife Act 1974.

101   Conditions and restrictions to licence

(1)  Without limiting section 99 (1) (a), the Director-General may grant an application for a licence subject to a condition that the applicant:
(a)  make specified modifications to the action proposed, whether in relation to the area of land proposed to be affected or otherwise, or
(b)  make a monetary contribution towards the cost of preparation of a recovery plan for any threatened species, population or ecological community, or any of their habitats, likely to be affected by the action proposed.
(2)  The Director-General may, by notice in writing served on the holder of a licence:
(a)  attach any conditions or restrictions to the licence after its issue, or
(b)  vary or remove any conditions or restrictions attached to any licence, or
(c)  otherwise vary the licence.
Note. Section 133 of the National Parks and Wildlife Act 1974 requires that the holder of a licence under this Part must not contravene or fail to comply with any condition or restriction attached to the licence.
(3)  The Audit and Compliance Committee established under section 9 of the National Parks and Wildlife Act 1974 is to monitor the conditions attached to licences by the Director-General, for the purpose of overseeing the compliance of the Director-General with his or her obligations under this Act.

102   Proposed variation of licence to be publicly notified

(1)  Despite section 101 (2), the Director-General must, before removing or varying any condition or restriction attached to a licence:
(a)  cause to be placed in a newspaper circulating throughout the State a notice:
(i)  outlining the nature of the proposed variation to the licence, and
(ii)  specifying the address of the place at which copies of any species impact statement relating to the licence may be inspected or purchased, and
(iii)  inviting written submissions within a period of not less than 28 days after the date of the notice, and
(b)  take into account the matters specified in section 97.
(2)  This section does not apply if the proposed variation to the licence constitutes a minor amendment only of that licence.

103   Notification of licence determination

(1)  The Director-General is to notify an applicant and any person who has made submissions of the Director-General’s determination of a licence application.
(2)  The Director-General must give a copy of the reasons for his or her determination of a licence application:
(a)  to the applicant, and
(b)  to any person who asks for it (either free or for a reasonable charge determined by the Director-General).

104   Director-General to keep register of licences

(1)  The Director-General must keep a register containing copies of licences issued under this Division as in force from time to time.
(2)  The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Director-General.

105   Cancellation of licence

(1)  A licence granted under this Part may be cancelled by the Director-General.
(2)  The Director-General is to notify the holder of a licence of its cancellation and is to include the reasons for the cancellation in that notification.

106   Appeal by applicant or person commenting on licence application

(1)  An applicant for a licence or a person who has made written submissions (within the period specified in this Division) about an application for a licence, or a person to whose licence conditions or restrictions have been attached or whose licence has been varied or cancelled may, if dissatisfied with the Director-General’s decision, appeal to the Land and Environment Court.
(2)  In determining an appeal about an application for a licence, the Court must take into account the matters set out in section 97, but this requirement does not limit the operation of section 39 of the Land and Environment Court Act 1979.

107   Time for appeal, and deemed approval

(1)  An appeal may be made by a person within 28 days after notification has been given to the person under section 101 (2), 103 or 105 (2) or, if the appellant is dissatisfied with any condition or restriction attached to a licence when it is granted, within 28 days after the licence is granted.
(2)  If the Director-General fails to grant, but does not refuse, a licence application by the expiry of the period of 120 days referred to in section 99 (2) or of any extension of that period agreed to by the Director-General and the applicant for the licence, the application is taken to have been granted.

108   Stay of operation of licence pending appeal

(1)  If an appeal relates to the grant of a licence, the licence has no operation until the expiration of the period within which a person entitled to lodge an appeal may do so or, if an appeal has been lodged, until the appeal is finally determined.
(2)  If no written submissions about an application of a licence are received at the specified place and by the specified date and the applicant informs the Director-General in writing that the applicant does not wish to lodge an appeal but that the applicant wishes the licence to commence, the licence is to operate from a date stipulated by the Director-General.
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