15 Mar 2018
To clear or not to clear: Queensland Government reintroduces vegetation clearing laws to reduce clearance rates
By Ian Motti, Kathryn Pacey
Even though under the current law your clearing might be exempt, the new Vegetation Management and Other Legislation Amendment Bill 2018, if enacted, will make particular clearing activities unlawful after 8 March.
The Queensland Government has introduced the Vegetation Management and Other Legislation Amendment Bill 2018, almost two years after its original proposed amendments to vegetation clearing laws were defeated in the Legislative Assembly. The Bill contains significant amendments to a number of Acts including the Vegetation Management Act 1999 (VMA), Planning Act 2016 and the Water Act 2000.
In a joint Ministerial Media Statement announcing the Bill on 8 March 2018, the Minister for Environment and the Great Barrier Reef, Minister for Science and Minister for the Arts stated "In 2015/16, close to 400,000 hectares of vegetation was cleared". According to the Explanatory Notes, one of the purposes of the Bill is to reduce clearing rates and associated carbon emissions that threaten the health of the Great Barrier Reef.
If enacted, many of the amendments to the VMA and associated amendments to the Planning Act will have retrospective operation from 8 March.
What does this Bill do?
The primary policy objectives of the Bill is to reinstate the vegetation management framework that was in existence before 2013. The Bill achieves this by:
- reinstating restrictions on the clearing on high-value regrowth on freehold and Indigenous land; and
- reinstating the prohibition on making an application to clear mapped vegetation for high-value agriculture or irrigated high-value agriculture.
The Bill also proposes to:
- introduce a new voluntary enforceable undertakings regime as an alternative to prosecution;
- significantly increase the penalty units for offences under the VMA; and
- clarifies exemptions under the Planning Act 2016 for clearing in accordance with a restoration notice or enforcement notice.
This Bill does not currently propose any amendment to the Environmental Offsets Act 2014.
Category R (regrowth watercourse areas)
The Bill introduces "Category R" restrictions beyond the Burdekin, Mackay-Whitsunday and the Wet Tropics to include vegetation in a "regrowth watercourse and drainage feature area" in the Burnett-Mary, Eastern Cape York and Fitzroy catchments. "Category R" vegetation is native vegetation that is located within 50 metres of a regrowth watercourse or drainage feature area, identified on a regulated vegetation map.
Land mapped as "Category R" is subject to an accepted development clearing code that allows landholders to undertake vegetation clearing without the need for a development approval if the clearing code can be complied with. Landholders are required to give notice to the Department of Natural Resources, Mines and Energy before the commencement of clearing. If the code cannot be complied with, a development approval will be required.
During the interim period (from 8 March until the date of assent) updated State mapping is published on the Department's website showing proposed category C areas and category R areas on the regulated vegetation management maps.
How will this Bill affect me?
The Bill preserves existing development approvals for clearing that were granted before 8 March 2018 and remain in force. Development applications for clearing that are made but not decided before 8 March 2018 will be decided as if the Bill had not commenced.
Development applications made during the interim period that seek approval for the clearing of high-value agriculture or irrigated high-value agriculture and which are not for a relevant purpose under the VMA will be taken not to have been made, and any decision on that application will be of no effect.
Additionally, any decision of the chief executive administering the VMA about an application made after 8 March 2018 to show an area as a category X area on a Property Map of Assessable Vegetation (PMAV) is taken to have no effect.
The Bill expressly provides that no compensation will be payable by the State in connection to the impact of the amendments on owners or occupiers.
The Bill also contains amendments to the VMA that require the chief executive to issue a notice to any person who undertakes unlawful clearing during the interim period requiring the restoration of the cleared land.
Clearing vegetation in a watercourse, lake or spring
In addition to the amendments to the VMA, the Bill reintroduces the obligation under the Water Act 2000 to obtain a riverine protection permit for clearing vegetation in a watercourse.
If the Bill is passed, a riverine protection permit will be required before a person could lawfully destroy vegetation, excavate or place fill in a watercourse, lake or spring.
The Bill also expands the compliance powers of authorised officers relating to monitoring the activities authorised under a riverine protection permits to ensure compliance.
The Bill has been referred to the State Development, Natural Resources and Agricultural Industry Development Committee which is due to report back to Parliament by 23 April 2018.
Submissions on the Bill can be made to the Committee until 12pm on Thursday 22 March 2018.
If you will be undertaking clearing activities after 8 March 2018 you need to consider the impacts of the Bill, and its retrospective effect on those activities as well as the updates to State vegetation mapping. Even though under the current law your clearing might be exempt, the retrospective provisions are directed at preventing particular clearing activities after this date.