Guide to the draft Native Vegetation Regulations 2016assets.yoursay.sa.gov.au/production/2016/07/01/03/14/51/1d3ab77d...Guide to the Draft Native Vegetation Regulations 2016 | 3 Background

Guide to the draft Native

Vegetation Regulations

2016

Guide to the Draft Native Vegetation Regulations 2016 | 2

Disclaimer

While every reasonable effort has been made to verify the information

in this fact sheet use of the information contained is at your sole risk.

The Department recommends that you independently verify the

information before taking any action.

Licensed under Creative Commons

Attribution 3.0 Australia License

www.creativecommons.org/licenses/by/3.0/au

Copyright Owner: Crown in right of the

State of South Australia 2016


Background

The draft Native Vegetation Regulations 2016 (the Regulations) outline a range of circumstances where

clearance of native vegetation is permitted. The Regulations allow for clearance for activities that are

routinely carried out by South Australians, including building new homes, managing farms, upgrading or

establishing new infrastructure, or making recreational trails. The Regulations seek to balance the

requirements for vegetation clearance with the need to protect and restore the remaining native

vegetation in South Australia.

Over time the current Regulations have become increasing complex as new permitted activities were

added, often with varying approaches to assessment and approval processes. Also, data on the clearance

of vegetation undertaken under the Regulations clearly showed that the majority of applications were for

very small patches or small numbers of trees (see below). Such small clearances are considered to pose a

very low risk to the conservation of native wildlife, or to issues such as salinity or erosion.

In 2014 a routine 10 year review of the 2003 Regulations was initiated, with the aim of simplifying the

current Regulations. The intent of all of the existing activities was ‘tested’ with major stakeholders, and

options for streamlining the approval processes were proposed, particularly for very small clearances.

As a result of the review, the new Regulations include just four approval pathways, and each of the 39

activities is aligned with a single pathway. This guide provides a summary of the details of approval

pathways and activities outlined in the draft Regulations.

Figure 1: A summary of permitted clearance applications from 2010-2014

The data from applications from the five years 2010-2014 clearly shows that the majority of applications

to clear native vegetation under the Regulations accounted for a very small proportion of the total area

cleared. This data highlighted the opportunity to streamline approval processes.


The proposed changes

The main changes to the Regulations are summarised below, however, for full details please refer to the

draft Native Vegetation Regulations 2016.

Changes to the regulations include:

Inclusion of the mitigation hierarchy as a guiding principle for all clearance activities, which

encourages proponents to consider all options for avoiding or minimising clearance, thereby

reducing the impact (and where appropriate the required subsequent Significant Environmental

Benefit).

Requirements for Significant Environmental Benefits have been aligned with the requirements in

the Native Vegetation Act 1991 to increase consistency and remove potential for confusion.

Increased clarity on permitted activities:

o Intent of activities has remained largely unchanged, however, updated definitions (e.g. for

infrastructure) improve clarity on what can be cleared;

o New activities: clearance for cultural activities by Aboriginal people; recreational trails;

vehicle access tracks (greater than 5 m wide); and minor clearance;

o Removal of clearance for fence posts;

o An activity for maintaining existing agriculture, forestry or farming management

(consistent with the previous 10 years of management) has combined three existing

Regulations and requires a management plan

o Clearance for road safety purposes has been incorporated into the roadside vegetation

management activity.

New risk assessment pathway, combined with the addition of the minor clearance activity, ensures

the level of in the clearance approval process is commensurate with the level of potential impact

of the clearance.

Currently a range of agencies self-assess Regulated clearance through Standard Operating

Procedures, formal Delegations or a Memorandum of Understanding. The review of the

Regulations (and associated policies and guidelines) provides an opportunity to establish a single

approach to reduce complexity in the system. In particular, the new Regulations do not refer to

Standard Operating Procedures, however, the same functions will continue through formal

Delegations to be developed with each partner agency.


The four approval pathways and associated

activities

To gain approval to clear native vegetation you must be undertaking one of the activities listed in the

Regulations and your proposal must meet the criteria that describe the activity. The pathway incorporates

the process for an application to be assessed and approved.

The four pathways are:

1. Permitted clearance (self-assessment)

2. Fire hazard reduction (CFS approvals)

3. Management of vegetation (requires a management plan)

4. Risk assessment:

Major Developments (s48 Development Act 1993)

Mining and petroleum activities

Exploration activities

Other activities where the level of risk associated with the activity is undefined

Details of each pathway are outlined below.

In addition, a new Part is included to facilitate development of the SA Motorsports Park near Tailem Bend,

which requires a unique approval pathway.


Approval Pathway 1: Permitted Clearance

This pathway incorporates what has been known in the past as exemptions to the clearance control

measures outlined in the Native Vegetation Act 1991. More accurately the proponent is responsible for

ensuring that the clearance activity meets the specific criteria defining activities in the Regulations, and

therefore this pathway is in effect a ‘self-assessment’ pathway.

No application is required and no Significant Environmental Benefit is required.

Table 1: Permitted Clearance (self-assessment) process and prescribed

activities

General Process

Self-assessment: no application or approval required by the Native vegetation Council

No significant environmental benefit (offset) required

Activity (Schedule 1, Part 1) Notes

Vegetation within 10 metres of an existing

building

For the purposes of maintaining the building

Refer to s3 for definition of building

Does not apply to River Murray Floodplain Area

Maintenance of infrastructure Refer to s3 for definition of infrastructure

Maintenance of a dam Incidental to repair or maintenance, within the previously

cleared area

Clearance under Electricity Act 1996 or

Emergency Management Act 2004

To maintain safety of electricity poles and wires;

To facilitate clearance in emergencies

Ongoing grazing practices Ongoing clearance through grazing by domestic stock, no

change to the rate of grazing within the last 10 years

Safety of person and property Must be real risk, as assessed by plant health expert

Only applies to plants over 2m tall

Vehicle tracks less than 5 metres wide Reasonably required for access

Walking tracks Up to 1 metre in width

Aboriginal cultural activities To facilitate non-commercial use of plants by Aboriginals

Fence construction or maintenance The fence must be reasonably required to control access

by people or movement of animals

Maximum widths apply

Regrowth If previously cleared within the previous 5 years and no

change of land use is occurring

Only permitted for plants regrown within the 5 years.

Firewood For people to collect wood for domestic purposes on their

own land

Quantity and size limits apply

Plant and animal control For control that is obligated under NRM Act 2004

where it is not possible to undertake the control without

some clearance

Native vegetation causing management

problems

For native species negatively impacting on natural

resources (e.g. coastal wattle in the SE)

Taking seeds and specimens The plant must not be substantially damaged

Cultana Training Area For use and management of land known as Cultana

(parcels specified) by Dept of Defence


Approval Pathway 2: Fire hazard reduction

This pathway facilitates the clearance of vegetation to support bushfire management activities, particularly

strategic actions based on bushfire management area plans.

Table 2: Fire hazard reduction approval process and prescribed activities

General Process

Self-assessment for vegetation; no application or approval required by the Native vegetation Council.

No Significant Environmental Benefit (offset) required.

Activity Notes

Within 20 metres of a dwelling Self-assessment activity

Establish or maintain a fuel break on an

existing fence-line

Self-assessment activity

Up to 5 metres in width

General Process

In accordance with written approval of the Chief Officer of SACFS (or delegate), and supported by the

applicable bushfire management plan.

No Significant Environmental Benefit (offset) required.

Authorised by a bushfire management plan Other situations as authorised by the applicable bushfire

management plan

For the Fire and Emergency Services Act 2005 SACFS, SAMFR and SASES can undertake or direct

clearance in emergency situations

Fuel reduction Where reasonably required for fire prevention or control

Fuel breaks Only in rural council area, where primary productions is

principal land use

Size and other conditions apply

Establishing or maintaining fire access tracks Not exceeding 15 metres in width


Approval Pathway 3: Vegetation management plans

There are a range of requirements for vegetation clearance that relate to ongoing maintenance and

management of native vegetation that are best facilitated by a management planning process. Guidelines

to facilitate this process have been developed (under s25 of the NV Act).

Table 3: Vegetation management plan approval process and activities

General Process

Activities that require a management plan approved by the Native Vegetation Council, or are undertaken in

accordance with Guidelines (as per s25 of the NV Act).

No Significant Environmental Benefit (offset) required

Activities Notes

Roadside or rail corridor vegetation management Generally for the purposes of ensuring safety and

controlling pests

Clearance can be undertaken in accordance with general

guidelines OR for variations a specific management plan is

required.

Maintaining existing agriculture, forestry or farming

practices

For maintaining commercial activities consistent with the

previous 10 years of management

Ecological restoration or management For conserving, managing and/or restoring native species,

vegetation or ecological processes

Changes to stock grazing regimes Where a new grazing regime is inconsistent with the

previous 10 years of management


Approval Pathway 4: Risk assessment

The risk assessment approval pathway and a new ‘minor clearance’ activity have been added to the new

Native Vegetation Regulations 2016, and together these are designed to streamline the approval process

for applications that pose a low risk to biodiversity conservation. Clearance applications considered to

pose a higher than low risk are assessed according to standard assessment methods.

The objective for the risk assessment approach is to ensure that approval processes are consistent with

the objectives of the Native Vegetation Act 1991, defensible, transparent and at a level commensurate

with the level of risk posed by the clearance. The risk assessment pathway applies to Major Developments,

mining, petroleum and exploration, and ‘other’ specified activities (see Tables 5-8).

This pathway has been designed to identify the clearance applications that pose a low risk to biodiversity

conservation (that is, the likelihood of impacting on the conservation of species or vegetation community

is minimal. The rationale for this is that a large majority of clearance proposals are small in extent and/or

number of trees, and therefore pose lower risk of impact. Also, some very minor clearance applications do

not match any prescribed activities in the Regulations and therefore currently require a full clearance

application under the Act. Inclusion of the minor clearance activity will eliminate this problem.

The two considerations for assessing the risk to conservation of biodiversity are the size of the clearance

or number of trees to be cleared, and the presence of threatened species or communities (representing

three of the ‘Principles of Clearance’ from the Native Vegetation Act; see Table 4).

Table 4. Principles of clearance explicitly addressed in the risk assessment

Assessing Risk

Based on Regulated clearance application data, ecological science and expert opinion criteria for defining

‘minor clearance’ and ‘low risk’ clearance has been developed for both agricultural and pastoral regions.

More details are available in a separate report.

Provision of site photographs with applications, combined with existing records and expert knowledge, is

considered adequate to determine the likelihood of the presence of threatened species/community at the

scale of ‘minor clearance’. If the available information does raise a ‘red flag’ a site inspection can occur.

Sites visits will still occur for all clearance applications not deemed ‘minor’.

Note: based on the past five years of data a 0.5ha area threshold for ‘low risk’ would account for

approximately 70% of all applicable applications), with a large proportion of applications being much

smaller than 0.5ha. The proportion of these sites where threatened species were recorded is currently being

assessed.

Principles of clearance (Native Vegetation Act)

“Native vegetation should not be cleared if, in the opinion of the Council –

(b) it has significance as a habitat for wildlife; or

(c) it includes plants of a rare, vulnerable or endangered species; or

(d) the vegetation comprises the whole, or a part, of a plant community that is rare,

vulnerable or endangered;…”


Cumulative impacts

When applying the risk assessment, any previous applications for the previous five years on the same

property must also be reported. The accumulative area or number of trees from past approvals will be

considered when determining the level of impact.

Table 5: Risk assessment processes and ‘other’prescribed activities

General Process

The risk is assessed according to the likely level of impact to biodiversity conservation.

Applications are assessed against criteria that defines a minor clearance activity. If not deemed minor, low

risk criteria are applied.

Proposals that do not meet minor or low risk criteria require a full assessment.

A Significant Environmental Benefit is required relative to the level of risk posed by the proposal.

‘Other’ activities:

Works on behalf of Commissioner of

Highways.

Self-assessed by DPTI via a MoU between NVC and

DPTI

E.g. road development and improvement, ports

infrastructure

New dwelling or building Requires approval under Development Act

Infrastructure construction or expansion This is for infrastructure deemed in the public interest

Provision of services to a building are also covered

Residential subdivision Requires approval under Development Act

Regrowth greater than 5 years old To maintain land in a condition required to continue

an ongoing use of the land

Recreation track Covers walking trails wider than 1m and other

recreational trails, e.g. mountain bike

Vehicle access track greater than 5m For establishing or widening a track that supports

commercial activities

New dam and expansion of existing dam Applies on pastoral land only

Minor clearance For clearance of very small patches (<0.03 hectares)

where there is no known risk to threatened species or

communities

Table 6: Risk assessment processes for Major Developments and projects

Process

Major Developments and projects

As per s48 of the Development Act 1993

The required public environmental impact report is provided to the NVC for comment, but not power of

direction.

The NVC signs off on Significant Environmental requirements (including SEB Management plan), and risk

assessment applied to determine the appropriate level of SEB.


Table 7: Risk assessment processes for specific mining and petroleum activities

Mining and petroleum activities

Approval process is delegated to DSD in accordance with Guidelines for SEB for Mining and Petroleum

Industry.

Vegetation clearance assessment and Significant Environmental Benefit requirements are included in the

relevant plans:

o Program for Environmental Protection and Rehabilitation plan-PEPR (for mining).

o Statement of Environmental Objectives-SOE (for petroleum).

Table 8: Risk assessment processes for specific exploration activities

Exploration activities

As per relevant Acts listed in Regulations, exploration is self-assessed.

Significant Environmental Benefits only apply when there is potential for significant impacts. Note: this is

not currently defined and not applied.


Guide to the draft Native Vegetation Regulations 2016assets.yoursay.sa.gov.au/production/2016/07/01/03/14/51/1d3ab77d...Guide to the Draft Native Vegetation Regulations 2016 | 3 Background

Documents