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Contents (2013 - 51)
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Local Land Services Act 2013 No 51
Current version for 2 August 2019 to date (accessed 29 January 2020 at 19:58)
Part 5B
Part 5B Private native forestry
Division 1 Preliminary
60ZQ   Definitions: Part 5B
(1)  In this Part—
forestry operations means—
(a)  logging operations—namely the cutting and removal of timber from land for the purpose of timber production, or
(b)  the harvesting of forest products—namely the harvesting of the products of trees and other vegetation (other than timber) that are of economic value, or
(c)  ongoing forest management operations—namely activities relating to the management of land for timber production such as thinning, burning and other silvicultural activities, or
(d)  ancillary activities to enable or assist in the above operations such as the provision of roads, snig tracks, waterway crossings and temporary timber storage facilities.
principles of ecologically sustainable forest managementmeans 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.
private native forestry code of practice, in relation to forestry operations, means a code made under Division 2 in relation to those operations and in force.
private native forestry plan means a private native forestry plan approved (or taken to be approved) under this Part and in force.
Note.
 See clause 27 of Schedule 6 for provisions that deem continuing property vegetation plans under the former Native Vegetation Act 2003, and continuing private native forestry plans approved under former Part 5C of the Forestry Act 2012, to be private native forestry plans approved under this Part.
(2)  Words and expressions used in this Part have (subject to this Part) the same meanings as in Part 5A.
60ZR   Objects of Part
The objects of this Part are—
(a)  to authorise the carrying out of private native forestry in accordance with principles of ecologically sustainable forest management, and
(b)  to protect biodiversity and water quality (including threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994) in connection with private native forestry operations, and
(c)  to enable landholders to carry out forestry operations in a sustainable manner in areas of the State to which this Part applies, and
(d)  to ensure that differences between private native forestry and native forestry operations in State forests or other Crown-timber land are recognised, including in the application of protocols, codes, standards and other instruments.
60ZS   Area of State to which this Part applies
(1)  This Part applies to any area of the State, other than the following—
(a)  a State forest or other Crown-timber land within the meaning of the Forestry Act 2012,
(b)  a plantation within the meaning of the Plantations and Reafforestation Act 1999,
(c)  national park estate and other conservation areas referred to in section 60A (b),
(d)  land that is declared as a marine park or an aquatic reserve under the Marine Estate Management Act 2014,
(e)  land that is subject to a private land conservation agreement under the Biodiversity Conservation Act 2016,
(f)  land that is subject to be set aside under a requirement made in accordance with a land management (native vegetation) code under Part 5A,
(g)  land that is or was subject to a requirement to take remedial action to restore or protect the biodiversity values of the land under Part 5A or under the Biodiversity Conservation Act 2016, the Native Vegetation Act 2003 or the National Parks and Wildlife Act 1974,
(h)  land that 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,
(i)  land that is an offset under a property vegetation plan made under the Native Vegetation Act 2003 that remains in force or is a set aside area under a Ministerial order under Division 3 of Part 6 of the Native Vegetation Regulation 2013 that remains in force,
(j)  any area in which forestry operations cannot be carried out because of the requirements of any other Act or statutory instrument or any agreement or court order.
(2)  The regulations may amend this section for the purposes of adding or removing areas of the State to which this Part applies (or of revising references to areas of the State).
Division 2 Private native forestry codes of practice
60ZT   Responsibility for preparation and making of codes
(1)  The Minister is responsible for preparing and making private native forestry codes of practice under this Division.
(2)  The Minister may make a private native forestry code of practice only with the concurrence of the Minister administering the Biodiversity Conservation Act 2016 and of the Minister administering Part 5A of this Act. The Minister is also required to consult the Minister administering Part 7A of the Fisheries Management Act 1994.
(3)  A private native forestry code of practice is to make provision for or with respect to the carrying out of forestry operations to which private native forestry plans apply, including provisions relating to—
(a)  notification of the commencement and cessation of forestry operations, and
(b)  biodiversity conservation, and
(c)  the prevention of water pollution, and
(d)  threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994, and
(e)  the provision of information about forestry operations to Local Land Services and the public, and
(f)  any other matter prescribed by the regulations.
(4)  A private native forestry code of practice is to specify the land to which it applies.
(5)  When preparing or giving concurrence to a private native forestry code of practice, the relevant Ministers are to have regard to the objects of this Part.
(6)  A private native forestry code of practice is to be published on the NSW legislation website.
Note.
 See clause 29 of Schedule 6 for provisions that continue existing private native forestry codes of practice in force until new codes are made under this Division.
60ZU   Public consultation on proposed codes
(1)  Before a private native forestry code of practice is made, the proposed code is to be made publicly available for a period of at least 4 weeks.
(2)  During that period, any person may make a written submission to the Minister on the proposed code. The Minister may (but need not) make publicly available the submissions made on the proposed code (or a summary of or report on any such submissions).
(3)  The Minister is, before making a private native forestry code of practice, to consider any submissions duly made on the proposed code.
(4)  If substantial changes are proposed to be made to a proposed code following public consultation, the Minister may undertake further public consultation on the revised proposed code.
(5)  A failure to comply with a requirement under this section in relation to a proposed code of practice does not prevent the code being made, or invalidate the code once it is made.
(6)  The regulations may make further provision for or with respect to public consultation under this section.
60ZV   Amendment or repeal of codes
(1)  A private native forestry code of practice may be amended or repealed in the same way as a code may be made.
(2)  Public consultation under section 60ZU applies to the amendment or repeal of a private native forestry code of practice.
(3)  However, the Minister may—
(a)  dispense with public consultation on any amendment of a code if satisfied it should be dispensed with because of the minor nature or urgency of the matter, and
(b)  dispense with any concurrence of, or consultation with, another Minister on any amendment of a code if satisfied it should be dispensed with because of the minor nature of the matter.
(4)  A code that amends or replaces a code extends to forestry operations under a private native forestry plan that was approved before the amendment or replacement (despite anything to the contrary in the plan) unless the amended or replaced code otherwise provides.
Division 3 Private native forestry plans
60ZW   Authorised private native forestry operations
(1)  Forestry operations are authorised by this Part if they are forestry operations to which a private native forestry plan applies.
(2)  A private native forestry plan does not authorise the carrying out of forestry operations on any part of the land to which the plan applies that becomes, after the approval of the plan, an area of the State to which this Part does not apply.
Note.
 Section 60N provides that it is a defence to the offence of clearing native vegetation in a rural area of the State under that section if (among other things) the clearing comprises forestry operations authorised under this Part (the offence of unauthorised clearing of native vegetation carries a maximum penalty ranging from $500,000 to $5 million). Clause 8 of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 provides that authority is not required under that Policy for the clearing of native vegetation in a non-rural area of the State if the clearing comprises forestry operations authorised under this Part (a similar maximum penalty applies under environmental planning and assessment legislation for the relevant offences under that legislation).
60ZX   Landholders may submit draft private native forestry plans
(1)  A landholder or group of landholders may submit a draft private native forestry plan to Local Land Services for approval under this Part. Any person may submit the draft plan on behalf of the landholder or group of landholders.
(2)  A draft plan cannot be submitted for approval without the consent in writing of—
(a)  all landholders of land to which the plan applies, and
(b)  all persons who have a forestry right (within the meaning of section 87A of the Conveyancing Act 1919) in the land to which the plan applies, and
(c)  any other person who has an interest in the land prescribed by the regulations.
(3)  A draft plan must be in the form approved by Local Land Services and contain or be accompanied by the information required by that form.
(4)  The regulations may make provision for or with respect to the fees payable in connection with a draft plan submitted for approval under this Part.
60ZY   Approval of private native forestry plans by Local Land Services
(1)  A private native forestry plan has effect only if it is approved by Local Land Services.
(2)  In determining whether to approve a draft plan (with or without modification), Local Land Services is to have regard to the following—
(a)  whether forestry operations can be carried out under the plan in accordance with the applicable private native forestry code of practice,
(b)  any other matters required by the regulations.
(3)  An approved private native forestry plan must—
(a)  identify the land to which the plan applies and on which forestry operations are to be carried out (by means of a map and any other identification particulars), and
(b)  specify the kinds of forestry operations that are authorised to be carried out, and
(c)  specify the period for which the plan is to have effect, and
(d)  include such other details or information as may be required by the regulations.
(4)  An approval under this Part is not an approval of an activity for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979.
60ZZ   Duration, variation and termination of private native forestry plans
(1)  A private native forestry plan has effect, subject to this section, for such period (not exceeding 15 years) as is specified in the plan.
(2)  A private native forestry plan may be terminated by Local Land Services—
(a)  by notice to the landholder for the reasons stated in the notice, or
(b)  on application by the landholder for the surrender of the plan.
(3)  Local Land Services may not terminate a private native forestry plan by notice to the landholder unless it is satisfied that—
(a)  approval of the plan was obtained as a result of false or misleading information provided by or on behalf of the landholder, or
(b)  a requirement imposed by the plan or by an applicable private native forestry code of practice has been contravened by the landholder or by a person carrying out forestry operations on behalf of the landholder, or
(c)  no further forestry operations to which the plan applies are to be carried out.
(4)  A private native forestry plan may be varied by Local Land Services on application by the landholder.
(5)  Sections 60ZX and 60ZY apply in relation to the variation of a private native forestry plan in the same way as those sections apply in relation to the submission and approval of a draft private native forestry plan.
(6)  A variation of a private native forestry plan may change the landholder authorised by the plan to carry out forestry operations. If the ownership of the land concerned changes, the new landholder is entitled to a variation of the plan to authorise the new landholder to carry out forestry operations in accordance with the existing terms of the plan.
(7)  The regulations may make provision for or with respect to the termination or variation of a private native forestry plan (including the fees payable in connection with an application to vary a plan).
Division 4 Enforcement and other provisions
60ZZA   Offence of contravening requirements of plan or code of practice
(1)  A person who contravenes a requirement imposed by a private native forestry plan or by an applicable private native forestry code of practice 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 relevant landholders 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, 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.
Note.
 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 a private native forestry plan and was carried out in accordance with that plan and the applicable private native forestry code of practice. 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)).
60ZZB   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 for forestry operations under this Part.
(2)  The Biodiversity Conservation Act 2016 contains provisions relating to the enforcement of this Part, and accordingly—
(a)  functions under Part 11 of this Act (Powers of authorised officers) 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 12 of this Act (Enforcement provisions) and that Part does not apply to any such alleged offence.
Note.
 This Part (in addition to Part 5A) 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),
(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).
(3)  The Environment Protection Authority may make recommendations to Local Land Services with respect to the termination or variation of a private native forestry plan as a result of information obtained by the Authority in the exercise of its functions under this section.
(4)  In this section—
enforcing compliance includes instituting criminal or civil proceedings.
monitoring includes investigating and reporting.
60ZZC   Regulations: Part 5B
(1)  Regulations made under this Part are to be made on the joint recommendation of the Minister and the Minister administering the Biodiversity Conservation Act 2016.
(2)  In addition to any other regulations specifically authorised by this Part, the regulations may make provision for or with respect to the carrying out of forestry operations to which private native forestry plans apply.