26 Nov 2009

New Act to regulate clearing of regrowth vegetation in Queensland

by Kathryn Pacey

The new legislative framework requires that clearing of regulated regrowth vegetation only occur in accordance with the Regrowth Vegetation Code and where the chief executive has been notified.

Queensland has a new regime for the protection of regulated regrowth vegetation on freehold, indigenous and leasehold (agricultural and grazing purposes) land, following the Vegetation Management and Other Legislation Amendment Act 2009 (Qld) becoming law on 3 November 2009.

The Act operates retrospectively from 8 October 2009, with the moratorium on clearing of regrowth and priority reef catchments expiring on 7 October 2009. The Act also repeals the Vegetation Management (Regrowth Clearing Moratorium) Act 2009 which gave effect to the now expired moratorium.

What are the changes?

In addition to existing controls on clearing of native vegetation, the Act amends the Vegetation Management Act 1999 ("VMA") and the Integrated Planning Act 1997 to control the clearing of “regulated regrowth vegetation” which is defined as vegetation:

  • identified on the regrowth vegetation map as high-value regrowth vegetation;
  • located within 50m of a watercourse identified on the vegetation map as a regrowth watercourse in priority reef catchments of the Burdekin, Mackay/Whitsunday and Wet Tropics; or
  • contained in a category C area shown on a property map of assessable development ("PMAV") which were previously the category 4 areas.

New maps identifying the regulated regrowth vegetation are now available and have been approved under the Regulation.

Although the Act operates retrospectively, clearing in the retrospective period (ie. between 8 October 2009 and 3 November 2009) is not an offence.

Introduction of a Regrowth Vegetation Code

The new legislative framework requires that clearing of regulated regrowth vegetation only occur in accordance with the Regrowth Vegetation Code (which must be approved by regulation) and where the chief executive has been notified. Clearing other than in accordance with the code can be approved, however applicants are limited to primary producers who were carrying on a primary production business on 8 October 2009 and applications must be made before 8 October 2011. If approved, an authorisation to clear other than in accordance with the code lapses on the transfer of land.

Transitional arrangements

The Act does not affect existing development approvals for vegetation clearing.

For development applications made before 8 October 2009 where clearing regulated regrowth is a natural and ordinary consequence of the development, regulated regrowth may be cleared under the development approval as if the amendments had not been made.

PMAV applications lodged before 26 March 2009 are also unaffected by the Act and will be assessed based on the law existing at the date of application.

For PMAVs lodged after 26 March 2009 but before 8 October 2009, the PMAV may only be made if the chief executive is satisfied that it is consistent with the purpose of the Act or the repealed Moratorium Act.

Other amendments

A range of other amendments were made to the existing vegetation clearing regime, including:

  • legislative recognition of the Policy for Vegetation Management Offsets, including that the chief executive in assessing development applications must comply with the Policy. The Regulation approves an amended Policy for Vegetation Management Offsets made by the chief executive on 21 October 2009;
  • compliance notices are replaced with “stop work notices” and “restoration notices”. Restoration notices run with the land in a similar way to compliance notices currently;
  • “not of concern” regional ecosystems are renamed “least concern” vegetation;
  • "relevant purpose" has been amended in the VMA to expand the scope of “extractive industry” and also modify the infrastructure purpose. Where development application requirements are triggered, only applications for a “relevant purpose” can be lodged, and where the chief executive administering the VMA is a concurrence agency, the application must be refused if not for a relevant purpose.

The amending Regulation also approves updated regional ecosystem, remnant and essential habitat maps certified by the chief executive on 21 October 2009.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.