You are using a version of the website built for webcrawlers and people whose devices cannot use javascript.
Some functionality will not be available.
Contents (2013 - 51)
Skip to content
Local Land Services Act 2013 No 51
Current version for 2 August 2019 to date (accessed 25 January 2020 at 14:55)
Part 5A Division 2
Division 2 Native vegetation regulatory map
60E   Purpose of native vegetation regulatory map
The purpose of the native vegetation regulatory map is to designate areas of the State to which this Part applies—
(a)  where the clearing of native vegetation is not regulated under this Part (category 1-exempt land), and
(b)  where the clearing of native vegetation is regulated under this Part (category 2-regulated land), and
(c)  where the clearing of native vegetation is regulated under this Part but (because of its vulnerability) is subject to additional restrictions and extended to the clearing of dead and non-native plants (category 2-vulnerable regulated land).
60F   Transitional arrangement until preparation of maps
(1)  This section applies to an area of the State to which this Part applies during the period from the commencement of this Part until the area has been designated on a native vegetation regulatory map (the transitional period).
(2)  For the purposes of this Part, the area is taken, during the transitional period, to be—
(a)  category 1-exempt land, if this Part requires the land to be designated as category 1-exempt land on the native vegetation regulatory map, or
(b)  category 2-regulated land, if this Part requires the land to be designated as category 2-regulated land on the native vegetation regulatory map (except as provided by paragraph (c)), or
(c)  category 2-vulnerable regulated land, if the land is designated on a transitional native vegetation regulatory map published by the Environment Agency Head as steep or highly erodible land, as protected riparian land or as special category land.
(3)  For the purposes of this Part, an area is taken, during the transitional period, to be low conservation value grasslands if it comprises only groundcover whose clearing was permitted by section 20 of the Native Vegetation Act 2003, as in force immediately before the repeal of that Act.
Note.
 Generally that section permitted clearing if the vegetation comprised less than 50% of indigenous species of vegetation.
(4)  A provision of this Part that determines the relevant categorisation of land by reference to a reasonable belief of the Environment Agency Head about a particular matter is to be construed, for the purposes of this section, as a reference to what a reasonable person would believe about the matter.
(5)  The Environment Agency Head may, in connection with any legal proceedings against a landholder, issue a certificate that the land described in the certificate is (for the reasons set out in the certificate) category 1-exempt land or category 2-regulated land (including category 2-vulnerable regulated land). The certificate is, in those legal proceedings, prima facie evidence of the category of the land during the transitional period.
(6)  The regulations may make further provision with respect to the application of this Part during the transitional period, including—
(a)  provisions applying to the identification of low conservation value grasslands, and
(b)  the issue of certificates by the Environment Agency Head, at the request of a landholder, as to the relevant categorisation of land, and
(c)  the preparation and publication of draft native vegetation regulatory maps for the purposes of the publication of maps at the end of the transitional period and the application of provisions of this Part in relation to those draft maps.
60G   Responsibility for preparation and publication of maps
(1)  The Environment Agency Head is responsible for preparing and publishing native vegetation regulatory maps under this Part.
(2)  Native vegetation regulatory maps are to be prepared in relation to the areas of the State to which this Part applies.
(3)  A native vegetation regulatory map may designate—
(a)  category 1-exempt land, and
(b)  category 2-regulated land (including category 2-vulnerable regulated land), and
(c)  any other sub-category prescribed by the regulations.
(4)  The Environment Agency Head is to publish information about the scientific method used to prepare a native vegetation regulatory map.
(5)  A native vegetation regulatory map is to be published on a government website.
60H   Category 1-exempt land mapping
(1)  Land is to be designated as category 1-exempt land if the Environment Agency Head reasonably believes that—
(a)  the land was cleared of native vegetation as at 1 January 1990, or
(b)  the land was lawfully cleared of native vegetation between 1 January 1990 and the commencement of this Part.
(2)  Land is to be designated as category 1-exempt land if the Environment Agency Head reasonably believes that—
(a)  the land contains low conservation value grasslands, or
(b)  the land contains native vegetation that was identified as regrowth in a property vegetation plan referred to in section 9 (2) (b) of the Native Vegetation Act 2003, or
(c)  the land is of a kind prescribed by the regulations as category 1-exempt land.
(3)  Land is to be designated as category 1-exempt land if the land is biodiversity certified under Part 8 of the Biodiversity Conservation Act 2016 or under any Act repealed by that Act.
(4)  However—
(a)  land described in subsection (1) or (2) is not to be designated as category 1-exempt land if section 60I (2) requires the land to be designated as category 2-regulated land, and
(b)  land described in subsection (1) (a) is not to be designated as category 1-exempt land if the land was unlawfully cleared of native vegetation after 1 January 1990, and
(c)  land described in subsection (2) (a) is not to be designated as category 1-exempt land if the land was unlawfully cleared of native vegetation after 1 January 1990.
(5)  The regulations may make provision for the purposes of determining whether grasslands are low conservation value grasslands for the purposes of this Division.
60I   Category 2-regulated land mapping
(1)  Land is to be designated as category 2-regulated land if the Environment Agency Head reasonably believes that—
(a)  the land was not cleared of native vegetation as at 1 January 1990, or
(b)  the land was unlawfully cleared of native vegetation after 1 January 1990.
(2)  Land is to be designated as category 2-regulated land if the Environment Agency Head reasonably believes that—
(a)  the land contains native vegetation that was grown or preserved with the assistance of public funds (other than funds for forestry purposes), or
(b)  the land is eligible for designation as category 2-vulnerable regulated land, or
(c)  the land is subject to a private land conservation agreement under the Biodiversity Conservation Act 2016, or
(d)  the land is subject to be set aside under a requirement made in accordance with a land management (native vegetation) code under this Part, or
(e)  the land contains grasslands that are not low conservation value grasslands, or
(f)  the land is or was subject to a requirement to take remedial action to restore or protect the biodiversity values of the land under this Part or the Biodiversity Conservation Act 2016 or under the Native Vegetation Act 2003 or the National Parks and Wildlife Act 1974, or
(g)  the land is subject to an approved conservation measure that was the basis for other land being biodiversity certified under Part 8 of the Biodiversity Conservation Act 2016 or under any Act repealed by that Act, or
(h)  the land is an offset under a property vegetation plan under the Native Vegetation Act 2003 or is a set aside under a Ministerial order under Division 3 of Part 6 of the Native Vegetation Regulation 2013, or
(i)  the land is in the coastal wetlands and littoral rainforests area of the coastal zone referred to in the Coastal Management Act 2016, or
(j)  the land is identified as koala habitat (of a kind prescribed by the regulations) in a plan of management made underState Environmental Planning Policy No 44—Koala Habitat Protection, or
(k)  the land is a declared Ramsar wetland within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth, or
(l)  the land has (subject to the regulations) been mapped by the Environment Agency Head as land containing critically endangered species of plants under the Biodiversity Conservation Act 2016, or
(m)  the land has been mapped by the Environment Agency Head as land containing a critically endangered ecological community under the Biodiversity Conservation Act 2016, or
(n)  the land is of a kind prescribed by the regulations as category 2-regulated land.
(3)  However, land described in subsection (1) is not to be designated as category 2-regulated land if section 60H (2) or (3) requires the land to be designated as category 1-exempt land.
60J   Matters relating to determination of mapped category of land
(1)  This section makes provision relating to the mapping of land under this Division as category 1-exempt land or category 2-regulated land.
(2)  Native vegetation that comprises grasslands or other non-woody vegetation is taken to have been cleared if the native vegetation was significantly disturbed or modified. The regulations may make provision for the purposes of determining whether native vegetation has been significantly disturbed or modified for the purposes of this Division.
(3)  Determinations may be made by the Environment Agency Head that land was unlawfully cleared of native vegetation only if compliance or enforcement action of a kind prescribed by regulations was taken in relation to the clearing.
(4)  Determinations may be made by the Environment Agency Head that land was cleared of native vegetation as at 1 January 1990 or between that date and the commencement of this Part only on the basis of the best available aerial photographs or satellite imagery before and after the relevant date, and any evidence provided by the landholder under section 60K (8).
(5)  Determinations made (or taken on appeal to have been made) by the Environment Agency Head as to whether land was or was not unlawfully cleared of native vegetation does not affect any decision made with respect to compliance or enforcement action taken under this or any other Act in relation to the clearing.
60K   Re-categorisation of mapped land
(1)  Re-categorisation of land is the preparation and publication of a native vegetation regulatory map in accordance with this Part for any of the following purposes—
(a)  the designation of land that is designated on a published map as one category to another category,
(b)  the designation of land that is not designated as any category on a published map as land of a particular category,
(c)  the removal of the designation of land on a published map.
(2)  The Environment Agency Head is to keep the categorisation of land under review and undertake an annual review of published maps.
(3)  The Environment Agency Head may re-categorise land if—
(a)  there is an error in a published map, or
(b)  the Environment Agency Head obtains new or improved information about historical vegetation cover or land use for a particular landholding, or
(c)  in the case of category 2-regulated land that the landholder applies to be re-categorised as category 1-exempt land—the Environment Agency Head reasonably believes that the land has been lawfully cleared after the commencement of this Part in accordance with a property vegetation plan under the Native Vegetation Act 2003 that remains in force, with an approval under Division 6 or with a development consent under the Environmental Planning and Assessment Act 1979 or an approval under Part 5.1 of that Act (unless the land concerned is required to be re-vegetated under the conditions of any such approval or consent), or
(d)  the land is subject to a successful review or appeal of an existing categorisation or of a re-categorisation (and the re-categorisation gives effect to the decision on the review or appeal), or
(e)  the land is authorised to be re-categorised by a land management (native vegetation) code, or
(f)  the land is authorised to be re-categorised by the regulations.
(4)  The Environment Agency Head is required to re-categorise land if the status of the land changes so that—
(a)  the land becomes (or ceases to be) an area that is excluded from the operation of this Part, or
(b)  the land is required to be designated as land of a different category.
A change in the status of land that results in the land being excluded from the operation of this Part has effect when the status of the land changes, whether or not the land has been re-categorised by the Environment Agency Head.
(5)  The Secretary of the Department of Planning and Environment is to notify the Environment Agency Head and the Secretary of the Department (within the meaning of this Act) of any proposed environmental planning instrument that is likely to result in land becoming (or ceasing to be) an area that is excluded from the operation of this Part or that is likely to result in a re-categorisation of a kind prescribed by the regulations.
(6)  Land that is category 2-regulated land cannot be re-categorised as category 1-exempt land because of—
(a)  any clearing activity authorised under this Part, or
(b)  any authorised clearing activity referred to in section 60O (Clearing authorised under other legislation),
unless the re-categorisation is authorised by this Part, a land management (native vegetation) code or the regulations.
(7)  The Environment Agency Head is required to consult the landholders concerned before land is re-categorised and to give the landholders at least 30 days to make submissions to the Environment Agency Head about proposed re-categorisations, unless the re-categorisation has been requested by the landholder or relates to the exclusion of land from (or inclusion of land into) the operation of this Part. The regulations may make provision for consultation by individual notification to all or specified landholders of any land or by a public consultation process.
(8)  The Environment Agency Head, when making a determination that grasslands or other non-woody vegetation was significantly disturbed or modified on 1 January 1990 or between that date and the commencement of this Part for the purposes of a re-categorisation of the land, is to take into account any evidence provided by the landholder.
(9)  If the Environment Agency Head notifies the landholder of category 1-exempt land of a proposed re-categorisation of the land to category 2-regulated land, the land is taken to be category 2-regulated land until whichever of the following first occurs—
(a)  the Environment Agency Head notifies the landholder that the land is not to be re-categorised or the land is recategorised,
(b)  the period prescribed by the regulations for the purposes of this subsection expires.
The Environment Agency Head is required to advise the landholder of the effect of this subsection when notifying the landholder of the proposed re-categorisation.
(10)  If a person commits an offence against section 60N in relation to land to which subsection (9) applies, the maximum penalty for the offence is (despite that section) a Tier 3 monetary penalty (within the meaning of the Biodiversity Conservation Act 2016).
(11)  The regulations may make further provision for or with respect to authorising or preventing the clearing of native vegetation during the process of the consideration of a re-categorisation of land or pending the publication of new maps to give effect to a re-categorisation decision.
60L   Review of categorisation decisions
(1)  The relevant landholder may request the Environment Agency Head to review a decision relating to the categorisation or re-categorisation of land on a native vegetation regulatory map.
(2)  The grounds on which a request for a review may be made are the same grounds on which the Environment Agency Head may re-categorise the land.
(3)  The grounds on which a request for a review may be made extend to a categorisation based on whether or not clearing was lawful, unless the categorisation was based on a determination of the matter made by a court.
(4)  The Environment Agency Head is to determine a request for a review, and for that purpose may arrange for an official who was not responsible for the original decision to conduct the review.
(5)  The regulations may make provision for or with respect to reviews, including the following—
(a)  the form of requests for a review,
(b)  the information to be provided in connection with a request for a review,
(c)  the extension of any request relating to a part of the landholding concerned to other parts of the landholding,
(d)  the fee payable for dealing with a request for a review,
(e)  notification of and consultation with affected persons or bodies.
60M   Appeal against categorisation or re-categorisation decisions
(1)  The relevant landholder may appeal to the Land and Environment Court against a decision relating to the categorisation or re-categorisation of land on a native vegetation regulatory map.
(2)  An appeal cannot be made against any such decision unless—
(a)  it is a decision made after a review under section 60L, or
(b)  a request has been made for a review of the decision under section 60L but the review has not been determined within the period prescribed by the regulations.
(3)  An appeal is to be made within the time prescribed by the regulations.
(4)  The lodging of an appeal does not, except to the extent the Court otherwise directs in relation to the appeal, operate to stay the decision appealed against.