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Contents (2003 - 103)
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Native Vegetation Act 2003 No 103
Current version for 1 January 2014 to date (accessed 30 April 2017 at 11:08)
Part 3
Part 3 Clearing native vegetation
Division 1 Control of clearing
12   Clearing requiring approval
(1)  Native vegetation must not be cleared except in accordance with:
(a)  a development consent granted in accordance with this Act, or
(b)  a property vegetation plan.
(2)  A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.
(3)  It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4.
Note.
 An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 45.
13   Minister is consent authority for clearing
For the purposes of the EPA Act, the Minister is the consent authority for any development application made under that Act for any clearing of native vegetation that requires development consent because of this Act.
14   Granting of development consent
(1)  If development consent is, because of this Act, required to clear native vegetation, Part 4 of the EPA Act applies to the granting of the development consent, subject to this Division.
(2)  In determining an application for development consent under this Act, the Minister is to have regard to any relevant provisions of local strategic plans under the Local Land Services Act 2013, and to other matters required by the regulations.
(3)  Development consent for broadscale clearing is not to be granted by the Minister unless the clearing concerned will improve or maintain environmental outcomes.
(4)  If the clearing of any native vegetation has the benefit of biodiversity certification under Division 4 of Part 7 of the Threatened Species Conservation Act 1995 and also the benefit of biodiversity certification under Part 7A of the Fisheries Management Act 1994:
(a)  an application for development consent for clearing is not required to be accompanied by a species impact statement or statements (as would otherwise be required under section 78A of the EPA Act), and
(b)  the Minister is not required to consult with the Minister administering the Threatened Species Conservation Act 1995 and the Minister administering the Fisheries Management Act 1994 (as would otherwise be required under section 79B of the EPA Act).
15   Regulations
(1)  The regulations may make provision for or with respect to the following:
(a)  clearing principles or other matters to which the Minister must or may have regard in determining an application for development consent under Part 4 of the EPA Act,
(b)  the exclusion of matters required to be considered under Part 4 of the EPA Act,
(c)  the circumstances in which broadscale clearing is to be regarded as improving or maintaining environmental outcomes for the purposes of development consent,
(d)  the circumstances in which development consent for clearing is not to be granted,
(e)  the keeping of a public register by the Director-General relating to development consents granted by the Minister under this Act and applications for such consents.
(2)  The regulations may also make provision, consistent with Part 4 of the EPA Act, for or with respect to the determination of applications for development consent for development comprising:
(a)  the clearing of native vegetation, and
(b)  any other form of development that requires development consent pursuant to an environmental planning instrument.
Any such regulation has effect despite anything in this Part.
16   Relationship to Part 5 of EPA Act
Part 5 of the EPA Act does not apply to any clearing carried out in accordance with this Part, and any such clearing is not an activity for the purposes of Part 5 of the EPA Act.
17   Clearing not affected by subsequent environmental planning instruments
If native vegetation is, or is about to be, cleared in accordance with:
(a)  development consent granted in accordance with this Act, or
(b)  a property vegetation plan,
that clearing cannot be prohibited, restricted or otherwise affected by a provision of any environmental planning instrument made after the consent was granted or the plan was approved (as the case requires).
Division 2 Permitted clearing
18   Application
(1)  This Division sets out the clearing of native vegetation that is permitted to be carried out without the authority conferred by a development consent or property vegetation plan.
(2)  This Division does not permit clearing without an approval or other authority required by another Act or in contravention of another Act.
19   Clearing of non-protected regrowth permitted
(1)  Clearing of native vegetation that is only regrowth, but not protected regrowth, is permitted.
(2)  This section is subject to any exclusion in a property vegetation plan.
20   Clearing of certain groundcover permitted
The clearing of native vegetation that comprises only groundcover is permitted if:
(a)  the vegetation comprises less than 50% of indigenous species of vegetation, and
(b)  not less than 10% of the area is covered with vegetation (whether dead or alive), and
(c)  those percentages are calculated in accordance with the regulations.
Division 3 Permitted activities
21   Application
(1)  This Division sets out the activities that do not constitute the clearing of native vegetation for the purposes of this Part and, accordingly, are permitted to be carried out without the authority conferred by a development consent or property vegetation plan.
(2)  This Division does not permit an activity without an approval or other authority required by another Act or in contravention of another Act.
22   Routine agriculture management activities
(1)  Clearing for routine agricultural management activities is permitted.
(2)  This section does not authorise any clearing of native vegetation:
(a)  if it exceeds the minimum extent necessary for carrying out the activity, or
(b)  if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work, building or structure.
23   Continuation of existing farming activities
(1)  The continuation of existing cultivation, grazing or rotational farming practices is permitted if it does not involve the clearing of:
(a)  remnant native vegetation, and
(b)  in the case of the Western Division—native vegetation comprising trees not less than 3 metres high of any of the following species: Eucalyptus camaldulensis (river red gum), Casuarina cristata (belah), Casuarina pauper (belah) or Callitris glaucophylla (white cypress pine).
(2)  In this section, existing means existing at the commencement of this Act.
24   Sustainable grazing
Sustainable grazing that is not likely to result in the substantial long-term decline in the structure and composition of native vegetation is permitted.
Division 4 Excluded clearing
25   Legislative exclusions
This Act does not apply to the following types of clearing of native vegetation:
(a)  any clearing authorised under the State Emergency and Rescue Management Act 1989 in relation to an emergency within the meaning of that Act,
(b)  any clearing authorised under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act,
(c)  any clearing carried out in accordance with a bush fire management plan under the Rural Fires Act 1997,
(d)  any clearing carried out in accordance with a property management plan approved by the Director-General of the Department of Environment and Conservation for the purposes of the Threatened Species Conservation Act 1995,
(e)  any clearing authorised under a licence issued under Division 1 of Part 6 of the Threatened Species Conservation Act 1995,
(f)  any clearing that is, or that is part of, designated development within the meaning of the EPA Act and for which development consent has been granted under that Act,
(g)  any clearing that is, or is part of, an activity carried out by a determining authority within the meaning of Part 5 of the EPA Act if the determining authority has complied with that Part,
(h)  any clearing that is, or is part of, an activity carried out in accordance with an approval of a determining authority within the meaning of Part 5 of the EPA Act if the determining authority has complied with that Part,
(i)  any clearing authorised to be carried out under Division 3 or 4 of Part 7 of the Fisheries Management Act 1994,
(j)  any clearing authorised under a licence issued under Division 6 of Part 7A of the Fisheries Management Act 1994,
(k)  any clearing carried out in accordance with a licence issued under section 131 of the National Parks and Wildlife Act 1974,
(l)  any clearing authorised under the Mining Act 1992,
(m)  any clearing authorised under the Petroleum (Onshore) Act 1991,
(n)  any clearing that consists of plantation operations within the meaning of the Plantations and Reafforestation Act 1999 on an authorised plantation in accordance with any conditions of the authorisation and with the Plantations and Reafforestation Code under that Act,
(o)  any clearing that involves the removal or lopping of any tree or other vegetation in accordance with section 88 of the Roads Act 1993,
(p)  any clearing carried out in accordance with a consent under Division 3 of Part 9 of the Roads Act 1993,
(q)  any clearing carried out in accordance with a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948,
(r)  any clearing for the purpose of a survey under the Surveying and Spatial Information Act 2002 that is undertaken by or under the direction of a surveyor,
(s)  any clearing carried out in accordance with a licence, permit, authority or approval under the Water Act 1912 or the Water Management Act 2000,
(t)  any clearing carried out in accordance with an order under the Trees (Disputes Between Neighbours) Act 2006.