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Contents (1995 - 101)
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Threatened Species Conservation Act 1995 No 101
Current version for 28 April 2017 to date (accessed 26 May 2017 at 08:05)
Part 6
Part 6 Licensing
Introductory note.
 This Part deals with the licensing by the Chief Executive of actions that are likely to result in:
(a)  the harming of an animal that is of, or part of, a threatened species, population or ecological community, or
(b)  the picking of a plant that is of, or part of, a threatened species, population or ecological community, or
(c)  damage to critical habitat, or
(d)  damage to habitat of a threatened species, population or ecological community.
The offences relating to the above actions are set out in the National Parks and Wildlife Act 1974.
This Part also contains provisions about species impact statements. These statements are employed to measure the significance of the effect of actions on threatened species, populations or ecological communities, or their habitats. A species impact statement must be lodged with an application for a licence under this Part if the Chief Executive determines that the action proposed is likely to significantly affect threatened species, populations or ecological communities, or their habitats.
Division 1 deals with the grant of licences, including the making of applications, fees, determinations as to whether actions proposed will significantly affect threatened species, populations or ecological communities, publication of applications and the making of submissions concerning them, and matters that the Chief Executive must take into account before granting licences and appeals.
Division 2 deals with the form and content of species impact statements and the notification of the Chief Executive’s requirements as to their preparation.
Division 3 sets out exceptions to licensing requirements.
Division 4 sets out miscellaneous provisions.
Division 1 Grant of licences
91   Licence to harm or pick threatened species, populations or ecological communities or damage habitat
(1)  The Chief Executive 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 Chief Executive.
(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 Chief Executive 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 Chief Executive as a debt due to the Crown in a court of competent jurisdiction.
(3)  The Chief Executive may, before dealing with an application, require the applicant to pay an amount not exceeding one-half of the estimated processing fee.
(4)  The Chief Executive 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 Chief Executive 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 Chief Executive 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 Chief Executive 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 Chief Executive as to significant effect
(1)  If the Chief Executive 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 Chief Executive 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 Chief Executive 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 Chief Executive 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 Chief Executive is to keep a register of licence applications made under this Act.
(2)  The Chief Executive 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 Chief Executive that a statement is required, the Chief Executive 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 Chief Executive 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 Chief Executive that a statement is required.
(2)  The Chief Executive 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 Chief Executive 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 Chief Executive 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 Chief Executive must take into account
(1)  In considering whether to grant or to refuse to grant a licence application, the Chief Executive 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 Chief Executive must also consider the likely social and economic consequences of granting or refusing to grant a licence application.
98   Chief Executive may request additional information
The Chief Executive 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 Chief Executive may:
(a)  grant the application, unconditionally or subject to conditions or restrictions, or
(b)  refuse the application.
(2)  The Chief Executive must, subject to subsection (3), make a decision about an application within 120 days after the Chief Executive receives a species impact statement or within such further period as may be agreed with the applicant for the licence.
(3)  The Chief Executive 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 Chief Executive 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 Chief Executive 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 Chief Executive 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 Chief Executive 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 Chief Executive, for the purpose of overseeing the compliance of the Chief Executive with his or her obligations under this Act.
102   Proposed variation of licence to be publicly notified
(1)  Despite section 101 (2), the Chief Executive 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 Chief Executive is to notify an applicant and any person who has made submissions of the Chief Executive’s determination of a licence application.
(2)  The Chief Executive 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 Chief Executive).
104   Chief Executive to keep register of licences
(1)  The Chief Executive 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 Chief Executive.
105   Cancellation of licence
(1)  A licence granted under this Part may be cancelled by the Chief Executive.
(2)  The Chief Executive 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 Chief Executive’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 Chief Executive 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 Chief Executive 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 Chief Executive 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 Chief Executive.
Division 2 Species impact statements
109   Form of species impact statements
(1)  A species impact statement must be in writing.
(2)  A species impact statement must be signed by the principal author of the statement and by:
(a)  the applicant for the licence, or
(b)  if the species impact statement is prepared for the purposes of the Planning Act, the applicant for development consent or the proponent of the activity proposed to be carried out (as the case requires), or
(c)  if the species impact statement is prepared for the purposes of the Plantations and Reafforestation Act 1999, the applicant for authorisation under that Act.
110   Content of species impact statement
(1)  A species impact statement must include a full description of the action proposed, including its nature, extent, location, timing and layout and, to the fullest extent reasonably practicable, the information referred to in this section.
(2)  A species impact statement must include the following information as to threatened species and populations:
(a)  a general description of the threatened species or populations known or likely to be present in the area that is the subject of the action and in any area that is likely to be affected by the action,
(b)  an assessment of which threatened species or populations known or likely to be present in the area are likely to be affected by the action,
(c)  for each species or population likely to be affected, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or threat abatement plan applying to it,
(d)  an estimate of the local and regional abundance of those species or populations,
(e)  an assessment of whether those species or populations are adequately represented in conservation reserves (or other similar protected areas) in the region,
(e1)  an assessment of whether any of those species or populations is at the limit of its known distribution,
(f)  a full description of the type, location, size and condition of the habitat (including critical habitat) of those species and populations and details of the distribution and condition of similar habitats in the region,
(g)  a full assessment of the likely effect of the action on those species and populations, including, if possible, the quantitative effect of local populations in the cumulative effect in the region,
(h)  a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development,
(i)  a full description and justification of the measures proposed to mitigate any adverse effect of the action on the species and populations, including a compilation (in a single section of the statement) of those measures,
(j)  a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the species or population.
(3)  A species impact statement must include the following information as to ecological communities:
(a)  a general description of the ecological community present in the area that is the subject of the action and in any area that is likely to be affected by the action,
(b)  for each ecological community present, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or any threat abatement plan applying to it,
(b1)  an assessment of whether those ecological communities are adequately represented in conservation reserves (or other similar protected areas) in the region,
(b2)  an assessment of whether any of those ecological communities is at the limit of its known distribution,
(c)  a full description of the type, location, size and condition of the habitat of the ecological community and details of the distribution and condition of similar habitats in the region,
(d)  a full assessment of the likely effect of the action on the ecological community, including, if possible, the quantitative effect of local populations in the cumulative effect in the region,
(e)  a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development,
(f)  a full description and justification of the measures proposed to mitigate any adverse effect of the action on the ecological community, including a compilation (in a single section of the statement) of those measures,
(g)  a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the ecological community.
(4)  A species impact statement must include details of the qualifications and experience in threatened species conservation of the person preparing the statement and of any other person who has conducted research or investigations relied on in preparing the statement.
(5)  The requirements of subsections (2) and (3) in relation to information concerning the State-wide conservation status of any species or population, or any ecological community, are taken to be satisfied by the information in that regard supplied to the principal author of the species impact statement by the National Parks and Wildlife Service, which information that Service is by this subsection authorised and required to provide.
111   Chief Executive’s requirements
(1)  The person applying for the licence (or, if the species impact statement is being prepared for the purposes of the Planning Act, the applicant for development consent or the proponent of the activity or, if the species impact statement is being prepared for the purposes of the Plantations and Reafforestation Act 1999, the applicant for authorisation under that Act) must request from the Chief Executive and must, in preparing the species impact statement, comply with any requirements notified to the person by the Chief Executive concerning the form and content of the statement.
(2)  The Chief Executive must notify any requirements under this section within 28 days after having been requested to provide them.
(3)  Despite the other provisions of this Division, the Chief Executive may, having regard to the circumstances of a particular case, limit or modify (or limit and modify) the matters to be included in a species impact statement in such manner as may be specified by the Chief Executive in the particular case.
(4)  Despite anything in this Act or the Planning Act or the Plantations and Reafforestation Act 1999, the Chief Executive may, having regard to the circumstances of a particular case, dispense with the requirement for a species impact statement in the particular case if the Chief Executive is satisfied that the impact of the activity concerned will be trivial or negligible.
112   Regulations
The regulations may make further provision for or with respect to the form and contents of species impact statements.
113   Chief Executive may accredit persons to prepare species impact statements
(1)  The Chief Executive is to institute arrangements for the accreditation of suitably qualified and experienced persons to prepare species impact statements for the purposes of this Act.
(2)  An applicant for accreditation must furnish the Chief Executive with such information as the Chief Executive requires to effectively determine the application and must be accompanied by the fee fixed by the Chief Executive for the consideration of the application.
(3)  An accreditation is to be for the period specified by the Chief Executive in the instrument of accreditation, and the accreditation (or any renewal of it) may be given subject to the conditions and restrictions (if any) specified in the instrument of accreditation.
(3A)  Without limiting subsection (3), an accreditation is to include conditions that require a species impact statement to be prepared in accordance with survey standards approved from time to time by the Chief Executive by order published in the Gazette.
(4)  The Chief Executive may vary conditions or restrictions (if any) attaching to an accreditation and may suspend or cancel an accreditation.
Division 3 Exceptions to licensing requirements
113A   Regulations
(1)  The regulations may provide that development or an activity of a specified type constitutes, or does not constitute, development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats.
(2)  Any such regulations have effect (despite the provisions of this Act or any other Act) for the purposes of the operation of:
(a)  Part 6 (Licensing) of this Act, and
(b)  Parts 4 and 5 of the Planning Act (including the operation of those Parts as applying under any other Act).
Note.
 Exceptions for the carrying out of routine agricultural management activities are provided for in section 118G of the National Parks and Wildlife Act 1974.
(3)  A regulation that provides that development or an activity of a specified type does not constitute development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats, is not to be made unless the Minister has certified in writing that the development or activity is of minimal environmental impact on threatened species, populations and ecological communities, and their habitats.
113B   Property management plans
(1)  The Chief Executive may, for the purposes of this Act, approve of a property management plan for land prepared by a landholder.
(2)  In determining whether to approve a property management plan, the Chief Executive must take into account such matters as may be prescribed by the regulations.
(3)  The Minister is to endeavour to ensure that regulations are made for the purposes of subsection (2) within 6 months after the commencement of that subsection.
(4)  Any action identified in, and carried out in accordance with, a property management plan so approved by the Chief Executive does not require a licence under this Part even if the action is an action, or of a class of actions, that may, in accordance with the regulations, be carried out only under the authority of a licence under this Part.
(5)  Without limiting subsection (4), a property management plan may include provisions that authorise persons other than the landholder to take any action on or in respect of land. For example, provisions that authorise Aboriginal persons to harm animals or pick plants on the land that is the subject of the property management plan may be included.
(6)  It is a defence to a prosecution for an offence under Part 8A of the National Parks and Wildlife Act 1974 if the accused proves that the action constituting the alleged offence was identified in, and carried out in accordance with, a property management plan approved by the Chief Executive for the purposes of this Act.
(7)  Nothing in this section prevents the Chief Executive from granting a licence under this Part to a landholder or to any other person to authorise the person to take any action referred to in section 91 (1).
(8)  For the avoidance of doubt, it is declared that the Chief Executive is not a determining authority for the purposes of Part 5 of the Planning Act when approving a property management plan.
Division 4 Miscellaneous
113C   Transitional—effect of changes to list of vulnerable species
(1)  An amendment to the list of vulnerable species does not apply in respect of an application for a licence duly made under section 92 before the amendment took effect.
(2)  This section ceases to apply in respect of an application for a licence at the end of the period of 12 months after the application is made.