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Contents (2012 - 96)
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Forestry Act 2012 No 96
Current version for 11 October 2019 to date (accessed 10 April 2020 at 09:50)
Part 5B
Part 5B Integrated forestry operations approvals
Division 1 Preliminary
69K   Forestry operations to which Part applies
(1)  This Part applies to forestry operations in State forests or other Crown-timber lands.
(2)  This Part does not apply to forestry operations—
(a)  on any part of the national park estate, or
(b)  on plantations within the meaning of the Plantations and Reafforestation Act 1999, or
(c)  on any land for the purposes of clearing natural forest to establish such a plantation or for agricultural or other non-forestry uses.
(3)    (Repealed)
(4)  In this section—
national park estate means any of the following—
(a)  land declared as a wilderness area under the Wilderness Act 1987 or the National Parks and Wildlife Act 1974,
(b)  land reserved under the National Parks and Wildlife Act 1974,
(c)  a flora reserve,
(d)  land dedicated or reserved for a similar public purpose under the Crown Land Management Act 2016.
69L   Purpose of integrated forestry operations approvals
(1)  The purpose of this Part is to provide a framework for forestry operations to which this Part applies—
(a)  that authorises the carrying out of those forestry operations in accordance with principles of ecologically sustainable forest management, and
(b)  that integrates the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation, including threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994.
(2)  In this section—
principles of ecologically sustainable forest management means the following—
(a)  maintaining forest values for future and present generations, including—
(i)  forest biological diversity, and
(ii)  the productive capacity and sustainability of forest ecosystems, and
(iii)  the health and vitality of native forest ecosystems, and
(iv)  soil and water quality, and
(v)  the contribution of native forests to global geochemical cycles, and
(vi)  the long term social and economic benefits of native forests, and
(vii)  natural heritage values,
(b)  ensuring public participation, provision of information, accountability and transparency in relation to the carrying out of forestry operations,
(c)  providing incentives for voluntary compliance, capacity building and adoption of best-practice standards,
(d)  applying best-available knowledge and adaptive management processes to deliver best-practice forest management,
(e)  applying the precautionary principle (as referred to in section 6(2)(a) of the Protection of the Environment Administration Act 1991) in preventing environmental harm.
Division 2 Approvals generally
69M   Granting of approvals
(1)  Approval for the carrying out of forestry operations to which this Part applies may be granted under this Part. Such an approval is called an integrated forestry operations approval.
(2)  This Part does not prevent or affect the carrying out of forestry operations authorised by or under any other provision of this Act or any other Act or law. However, the carrying out of forestry operations to which an integrated forestry operations approval applies is subject to the terms of the approval.
Note.
 Forestry operations the subject of an approval are excluded from environmental assessment and approval under Part 4 or 5 of the Environmental Planning and Assessment Act 1979—see section 69W.
Note 2.
 Section 122(2) of the Protection of the Environment Operations Act 1997 provides a defence to the offence of polluting waters under that Act if the act was the carrying out of a forestry operation authorised by an integrated forestry operations approval and was carried out in accordance with the approval. A similar defence applies to an offence relating to the protection of animals and plants under Part 2 of the Biodiversity Conservation Act 2016 (section 2.8(1)(h)) and of fish under Part 7A of the Fisheries Management Act 1994 (section 220ZF(1)(b3) and (b4)).
69N   Approvals to be granted jointly by relevant Ministers
(1)  An integrated forestry operations approval may only be granted jointly by the Minister for the Environment and the Minister for Lands and Forestry.
(2)  An integrated forestry operations approval is to be in writing signed by those Ministers.
(3)  Before granting an integrated forestry operations approval, the Minister for the Environment and the Minister for Lands and Forestry are required to consult the Minister administering Part 7A of the Fisheries Management Act 1994.
69NA   Public consultation on proposed approvals
(1)  Before an integrated forestry operations approval is granted, public consultation on the proposed approval is to be undertaken.
(2)  The public consultation is to include the following—
(a)  giving at least 28 days notice of the proposed approval,
(b)  making the proposed approval publicly accessible during that period of public notice,
(c)  inviting representations in connection with the proposed approval within the time specified in the notice,
(d)  consideration of any such representation before the approval is granted.
(3)  Public consultation under this section on a proposed integrated forestry operations approval is not required if the proposed approval has been part of a review under section 69G.
(4)  Any public consultation undertaken in relation to a proposed integrated forestry operations approval before the commencement of this section is taken to have been undertaken for the purposes of this section.
69O   (Repealed)
69P   Terms of approval
(1)  An integrated forestry operations approval is to describe the forestry operations covered by the approval, including a description of the area of the State to which it applies.
(2)  An integrated forestry operations approval is—
(a)  to make provision for or with respect to the carrying out of forestry operations covered by the approval, and
(b)  to set out conditions subject to which those forestry operations are to be carried out, including conditions that may be imposed under any of the following—
(i)  a biodiversity conservation licence under the Biodiversity Conservation Act 2016,
(ii)  a licence under Part 7A of the Fisheries Management Act 1994,
(iii)  an environment protection licence under the Protection of the Environment Operations Act 1997.
(3)  An integrated forestry operations approval may apply or adopt protocols, codes, standards or other instruments that are publicly available and in force from time to time.
(4)  Without limiting subsection (3), any such protocols may include those prepared by the Environment Protection Authority.
69Q   Duration of approval
(1)  An integrated forestry operations approval has effect for the period (not exceeding 20 years) specified in it, unless sooner revoked.
(2)  A further approval or approvals may be granted after the expiry of an earlier approval, subject to subsection (1).
69R   Revocation, suspension or amendment of approval
(1)  An integrated forestry operations approval may be amended, suspended or revoked at any time jointly by the Ministers authorised to grant the approval.
(2)    (Repealed)
(3)  A suspension of the approval may extend to all or any of the forestry operations covered by the approval.
Note.
 See section 69G for review of approvals every 5 years and for reports on approvals.
69RA   Public consultation on proposed amendment or revocation of approval
(1)  Before an integrated forestry operations approval is amended or revoked, public consultation on the proposed amendment or revocation is to be undertaken.
(2)  The public consultation is to include the following—
(a)  giving at least 28 days notice of the proposed amendment or revocation,
(b)  making the proposed amendment publicly accessible during that period of public notice,
(c)  inviting representations in connection with the proposed amendment or revocation within the time specified in the notice,
(d)  consideration of any such representation before the approval is amended or revoked.
(3)  Public consultation under this section on a proposed amendment or revocation of an integrated forestry operations approval is not required if the approval has been reviewed under section 69G.
(4)  Public consultation under this section on a proposed amendment of an integrated forestry operations approval is not required if the Minister considers the proposed amendment to be of a minor nature.
69S   (Repealed)
Division 2A Enforcement and other provisions
69SA   Offence of contravening requirements of approval
(1)  A person who contravenes a requirement imposed by an integrated forestry operations approval is guilty of an offence.
Maximum penalty—
(a)  for an offence that was committed intentionally and that caused or was likely to cause significant harm to the environment—
(i)  in the case of a corporation—$5 million, or
(ii)  in the case of an individual—$1 million, or
(b)  for any other offence—
(i)  in the case of a corporation—$2 million, or
(ii)  in the case of an individual—$500,000.
(2)  This section applies to requirements (however described) imposed on the Forestry Corporation or on persons carrying out forestry operations and whether arising before, during or after the carrying out of forestry operations.
(3)  The higher maximum penalty under this section does not apply unless—
(a)  the prosecution establishes (to the criminal standard of proof) that the offence was committed intentionally and caused or was likely to cause significant harm to the environment, and
(b)  the court attendance notice or application commencing the proceedings alleged that those factors applied to the commission of the offence.
If any such allegation in the notice or application is not established by the prosecution, the lower maximum penalty under this section applies (whether or not the notice or application is amended).
(4)  This section does not operate to preclude the commission of an offence under Part 5A of the Local Land Services Act 2013, the Environmental Planning and Assessment Act 1979, the Protection of the Environment Operations Act 1997, the Biodiversity Conservation Act 2016 or Part 7A of the Fisheries Management Act 1994 in relation to the carrying out of forestry operations.
69SB   Enforcement functions of EPA
(1)  The Environment Protection Authority has the function of monitoring the carrying out of forestry operations to which this Part applies and the function of enforcing compliance with the requirements of integrated forestry operations approvals.
(2)  The Biodiversity Conservation Act 2016 contains provisions relating to the enforcement of this Part, and accordingly—
(a)  functions under Part 6 of this Act (Investigations and enforcement powers) are not exercisable in relation to any matter arising under this Part, and
(b)  proceedings for an offence against this Part or the regulations under this Part cannot be instituted under Part 7 of this Act (Criminal proceedings and related matters) and that Part does not apply to any such alleged offence.
Note.
 This Part (in addition to Parts 5A and 5B of the Local Land Services Act 2013) is native vegetation legislation (and offences under this Part are native vegetation offences) for the purposes of the Biodiversity Conservation Act 2016. Accordingly, the following provisions of that Act apply (to the extent specified in those provisions) to the enforcement of this Part—
(a)  Part 11 (Regulatory compliance mechanisms), except Division 3,
(b)  Part 12 (Investigation powers),
(c)  Part 13 (Criminal and civil proceedings),
(d)  Section 14.7A (Provisions relating to regulation or enforcement of native vegetation legislation).
See also section 13.14A of the Biodiversity Conservation Act 2016.
(3)  In this section—
enforcing compliance includes instituting criminal or civil proceedings.
monitoring includes investigating and reporting.
69SC   Enforcement cost recovery
(1)  The Corporation is required to pay to the Environment Protection Authority such annual licence fees in relation to integrated forestry operations approvals as are determined by the Ministers granting those approvals.
(2)  Any such annual licence fees are payable for the purpose of the recovery of the reasonable costs incurred by the Environment Protection Authority in exercising its function of monitoring the carrying out of forestry operations to which this Part applies and the function of enforcing compliance with the requirements of integrated forestry operations approvals.
(3)  Until any such annual licence fees are determined, the Corporation is required to pay to the Environment Protection Authority the annual licence fees payable in respect of the environment protection licences deemed to have been granted under Division 3 before its repeal by the Forestry Legislation Amendment Act 2018.
Division 3
69T–69V  (Repealed)
Division 4 Application of other legislation
(1)  Part 5 of the Environmental Planning and Assessment Act 1979 does not apply in respect of the carrying out of, or the granting of approval in relation to, forestry operations during any period that an integrated forestry operations approval applies to those operations. That Part does not apply to the granting or amendment of any such approval or to the making or amendment of a forest agreement.
(2)  An environmental planning instrument under the Environmental Planning and Assessment Act 1979 cannot prohibit, require development consent for or otherwise restrict forestry operations during any period that an integrated forestry operations approval applies to those operations.
(2A)  Forestry operations cannot be declared to be a project under Part 3A, or State significant infrastructure under Part 5.1, of the Environmental Planning and Assessment Act 1979 during any period that an integrated forestry operations approval applies to those operations.
Any such declaration that is in force under that Part when the integrated forestry operations approval is granted (and any approval under that Part in relation to the declaration) has no effect during that period.
(3)  An order under Division 2A of Part 6 of the Environmental Planning and Assessment Act 1979 does not have effect to the extent that it prevents or interferes with the carrying out of forestry operations authorised by an integrated forestry operations approval.
(4)  Any approval of forestry operations that is in force under Division 4 of Part 5 of the Environmental Planning and Assessment Act 1979 has no effect during any period that Part 5 of that Act does not apply to the forestry operations. Any development consent for forestry operations that is in force under Part 4 of the Environmental Planning and Assessment Act 1979 has no effect during any period that development consent under Part 4 of that Act is not required for the forestry operations.
(5)  Subsection (2) applies to an environmental planning instrument made before or after the commencement of this section.
69X   Application of Biodiversity Conservation Act 2016—interim protection orders
Division 3 (Interim protection orders) of Part 11 of the Biodiversity Conservation Act 2016 does not apply to the carrying out of forestry operations during any period that an integrated forestry operations approval applies to those operations.
69Y   Application of Local Government Act orders
An order under section 124 of the Local Government Act 1993 does not have effect to the extent that it prevents or interferes with the carrying out of forestry operations authorised by an integrated forestry operations approval.
69Z   Application of wilderness legislation
An area in which forestry operations authorised by an integrated forestry operations approval may be carried out cannot be proposed or identified as, or declared to be, a wilderness area under the Wilderness Act 1987 or the National Parks and Wildlife Act 1974.
69ZA   Application of statutory provisions relating to proceedings by third parties
(1)  This section applies to the following statutory provisions—
(a)  section 252 or 253 of the Protection of the Environment Operations Act 1997,
(b)  a provision of an Act that gives any person a right to institute proceedings in a court to remedy or restrain a breach (or a threatened or apprehended breach) of the Act or an instrument made under the Act, whether or not any right of the person has been or may be infringed by or as a consequence of that breach,
(2)  Proceedings may not be brought under a statutory provision to which this section applies if the breach (or threatened or apprehended breach) to which the proceedings relate is as follows—
(a)  a breach of this Part (including a breach of any forest agreement),
(b)  a breach of an integrated forestry operations approval,
(c)  a breach of an Act or law that arises because any defence provided by an integrated forestry operations approval is not available as a result of a breach of the approval,
(d)  a breach of the Act that includes the statutory provision (including a breach of an instrument made under that Act) if the breach relates to forestry operations to which an integrated forestry operations approval applies.
(3)  This section does not apply to any proceedings brought by—
(a)  a Minister, or
(b)  the Environment Protection Authority or a member of the staff of the Authority, or
(c)  in the case of the provision of an Act referred to in subsection (1)(b)—a government agency or any government official engaged in the execution or administration of the Act.