Vegetation management framework amendments

In Brief

• In March 2013 the Vegetation Management Framework Amendment Bill 2013 was introduced to the Queensland State Parliament with the aim of reducing red tape and regulatory burden on stakeholders, and after some minor amendments it became the Vegetation Management Framework Amendment Act 2013 (the Act) on 23 May 2013.
• The new Vegetation Management Framework will: introduce a new regulatory mapping system similar to the existing PMAV system, remove the majority of regrowth vegetation from regulatory maps (with the exception of regrowth watercourses), include some high value agricultural and environmental activities as ‘relevant purposes’, introduce a self-assessable code for routine rural land management activities and change enforcement of the VM Act.
• The majority of the changes will take effect from early 2014.

Full Article

On 20 March 2013, the Minister for Natural Resources and Mines introduced the Vegetation Management Framework Amendment Bill 2013 to the Queensland State Parliament.  The purpose of the proposed legislation was to amend the existing vegetation management framework, reduce red tape and regulatory burden on stakeholders, and maintain the protection and management of Queensland’s native vegetation resources.

In its original form, the Bill received heavy criticism from stakeholders (particularly environmental groups and local government) regarding its potential impacts.  Particularly, the removal of the protection of regrowth vegetation was highlighted, with fears that a lack of protection for forested areas within Great Barrier Reef catchment areas would have implications for the health of the Great Barrier Reef World Heritage Area.

The Bill was subject to a State Development, Infrastructure and Industry Committee parliamentary inquiry and public hearing on 14 May 2013, where amendments were proposed and made.  The Vegetation Management Framework Amendment Act 2013 (the Act) was assented on 23 May 2013.  The Vegetation Management Act 1999 (VM Act) was amended with some of those changes accordingly on 1 July 2013 with further amendments to be made in late 2013.  The changes to the vegetation management framework in Queensland as a result of the Act are now discussed.

New vegetation mapping

Under the current system, searches for vegetation mapping in Queensland result in the production of four maps presenting the following data: remnant regional ecosystems (RE’s), essential habitat, regulated regrowth or high value regrowth (HVR) and Property Map of Assessable Vegetation (PMAV). Under the new framework, vegetation mapping will be simplified by creating an overarching ‘regulated vegetation management map’ based on vegetation categories, most of which are already familiar to the PMAV.  Vegetation category areas’ are defined in the new section 20AKA of the VM Act as a category A area (a declared area, offset area, exchange area or an area unlawfully cleared), category B area (remnant vegetation), category C area (high value regrowth or an area the chief executive decides to show on the map), category R area (regrowth watercourse defined as regrowth within 50m of a watercourse located in the Burdekin, Mackay Whitsunday or Wet Tropics catchments) or category X area (non-regulated vegetation).  Separate ‘vegetation management wetlands map’ and ‘vegetation management watercourse map’ will also to be prepared, for assistance in interpreting certain elements of the regional vegetation management codes used to assess clearing applications.

Under the Act, the definition for category B areas still refers to endangered, of concern and least concern RE’s.  One can only assume that this information will still be provided with the new mapping and relevant in the assessment of proposed clearing.  The same applies to essential habitat.

The Department of Natural Resources and Mines (DNRM) purports that the new map will lock in regulated and non-regulated vegetation into the future, giving landholders greater certainty that the vegetation category boundaries won’t change and providing greater security when developing long-term property plans.  This means all non-assessable vegetation at the commencement of the Act will be maintained as category X (areas not assessable, or not regulated under the vegetation management framework).  The PMAV mechanism will still be available to amend the regulated vegetation management map and expand category X areas.

The new map is expected to be available towards the end of 2013. 

High-value regrowth repeal

Areas of high value regrowth (HVR) or category C areas will be greatly reduced due to the new definition in the Act.  HVR is now defined as “vegetation located—

(a) on a lease issued under the Land Act 1994 for agriculture or grazing purposes; and

(b) in an area that has not been cleared since 31 December 1989 that is—

    (i) an endangered regional ecosystem; or

    (ii) an of concern regional ecosystem; or

    (iii) a least concern regional ecosystem.”

This will effectively mean that the regulation of clearing of high-value regrowth vegetation will be removed from freehold and Indigenous land, with the exception of HVR along watercourses in priority reef catchments (new category R areas).  The continued protection of regrowth watercourses was a response to stakeholders concerned with the maintenance of the quality of water entering the Great Barrier Reef.  This amendment alone will return the regulation of high value regrowth clearing to pre-2009 levels.

To promote fairness in the new system, those properties subject to an existing PMAV (where HVR is already mapped as a category C area and protected) will have access to a new transitional section (section 111) in the VM Act.  Section 111 will operate so that category C areas identified on a PMAV on freehold land or indigenous land will be taken to be category X areas (areas not assessable, or not regulated, under the vegetation management framework) or as a category R area if they are in a regrowth watercourse area. This amendment ensures the removal of regulations on regrowth vegetation also applies where a PMAV is in place.

Expansion of relevant purposes (Section 22A) to include high-value agriculture, irrigated high-value agricultural clearing and necessary environmental clearing

Under Section 22A of the VM Act, a proponent must have a ‘relevant purpose’ to be allowed to clear regulated vegetation.  If the purpose of the clearing is deemed to be a relevant purpose, then the clearing is assessed against the relevant part of the applicable regional vegetation management code.  Currently, clearing is considered for a ‘relevant purpose’ if it is:

• a project declared to be a significant project under section 26 of the State Development and Public Works Organisation Act 1971
• necessary to control non-native plants or declared pests
• to ensure public safety
• for establishing a necessary fence, firebreak, road or vehicular track, or for constructing necessary built infrastructure, and the clearing for the relevant infrastructure cannot reasonably be avoided or minimised
• a natural and ordinary consequence of other assessable development for which a development approval as defined under the Sustainable Planning Act 2009 was given, or a development application as defined under the Planning Act was made, before 16 May 2003
• for fodder harvesting
• for thinning
• for clearing of encroachment
• for an extractive industry

The Act introduces three new ‘relevant purposes’: high-value agriculture clearing, irrigated high-value agriculture clearing and necessary environmental clearing.

‘High value agriculture clearing’ means clearing carried out to establish, cultivate and harvest crops, other than clearing for grazing activities or plantation forestry. It covers clearing for annual and perennial horticulture and broadacre cropping, but does not include clearing to establish and cultivate native or introduced pastures for the grazing of livestock, or to establish plantation forestry.

‘Irrigated high value agriculture clearing’ means clearing carried out to establish, cultivate and harvest crops or pasture, other than clearing for plantation forestry, that will be supplied with water by artificial means. It includes clearing for annual and perennial horticulture and broadacre cropping, in addition to pasture (for example, pasture-based dairy farms), which requires irrigation. Again, plantation forestry is specifically excluded.

The introduction of these agricultural activities is aimed at assisting in the growth of the agricultural industry to attain the government’s goal of doubling Queensland’s food production by 2040.  The criteria that agricultural activities will be assessed against is not entirely clear at this stage, however, it is anticipated that the new parts of the code will include detail on land suitability and will be more stringent on activities proposed within of concern or endangered RE’s.  The code will be addressed in a development plan that will accompany any vegetation clearing application made for high value agriculture clearing or irrigated high value agriculture clearing. The development plan will include the following:

• the extent and location of the proposed clearing;
• particulars of the clearing, including when the clearing is expected to be completed;
• evidence that the land is suitable for agriculture (and the particular type of crop proposed) and that there is no suitable alternative site for the clearing;
• evidence that there is enough water available (and able to be allocated via water licence) to the proponent to carry out the irrigated high-value agricultural activity;
• details about how adverse impacts of the clearing will be minimised or mitigated; and
• for activities related to the clearing, details of a business plan showing information about the viability of the activities.

The onus on proponents undertaking an application for ‘necessary environmental clearing’ is likely to be less and reflect, in some respects, the existing parts of the code for thinning or weed / pest removal and public safety.  Necessary environmental clearing is defined as clearing that is necessary to:

• restore the ecological and environmental condition of the land;
• divert existing natural channels in way that replicates the existing form of the natural channels;
• prepare for the likelihood of a natural disaster; or
• remove contaminants from land.

Self-assessment of routine rural land management activities

‘Routine rural land management activities’ include: weed/pest control, fodder harvesting, thinning, managing encroachment and property infrastructure (e.g. fence, firebreak, road or necessary built infrastructure).  Currently these activities are all listed as separate ‘relevant purposes’ in Section 22A and addressed as separate parts of the regional vegetation management codes, which must be addressed in any application for clearing to the DNRM.  The Act will result in the development of a set of self-assessable clearing codes for ‘routine rural land management activities’.  This will provide an opportunity for landholders to undertake vegetation management activities without the need for government involvement or assessment, provided they comply with code requirements. 

This new arrangement is likely to operate in the same manner that the ‘Regrowth vegetation code’ works currently.  For example, the clearing must comply with the relevant section of the code for it to be allowed to occur and notification is required by DNRM before the clearing is undertaken.  For clearing that is not code compliant, a development approval will be required.

It is anticipated that the self-assessable code for routine rural land management activities will be available towards the end of 2013.

Changes to enforcement, investigation and offence provisions

With fewer applications to process, DNRM will be able to put extra resources into enforcement.  They will ensure the general public that “inappropriate vegetation management practices that show no regard for the environment will be readily detected through satellite monitoring”.  The DNRM will continue to monitor compliance and take appropriate action against unlawful activities, with a few changes to the defences available to offenders and the provisions for sentencing.

The final reforms introduced by the Act are aimed at providing greater fairness and balance in relation to the enforcement and compliance provisions of the VM Act. This includes changing the powers of an authorised officer so that an individual may refuse entry to a place and an individual may refuse to provide evidence to an authorised officer if it may incriminate the individual. Other changes (such as the removal of the schedule of penalties and reference to the Penalties and Sentences Act 1992) are designed to provide a more equitable and consistent approach to sentencing in relation to unlawful clearing of vegetation offences.

The changes described are widely supported by agricultural groups and many farmers who saw the VM Act as taking away property rights for the past 14 years.  From a conservation perspective, many environmental groups are concerned about the removal of protection from over 700,000 ha of regrowth vegetation and opening up of remnant areas to agricultural uses via the additional relevant purposes.

While some amendments commenced on 23 May 2013 (i.e. enforcement and compliance provisions), the majority of amendments are expected to come into effect towards the end of 2013. 

At this time, it should also be noted that the system for applying for permits has changed.  From 1 July 2013, the assessment process for vegetation clearing changed with the introduction of the State Assessment and Referral Agency (SARA).  SARA only relates to development applications where a state agency currently has a jurisdiction. The new arrangements will mean the the Director-General of Department of State Development Infrastructure and Planning (DSDIP), will become the assessment manager or referral agency for these development applications.  Landholders wishing to apply for a permit should access the SARA website to gain details of the application requirements, the assessment process and fees.

References:

Alcorn (2013) Planned changes to the vegetation management framework in Queensland. Accessed online on 22 July 2013: http://www.mondaq.com/australia /x/240778/agriculture+land+law/Planned+changes+to+the+vegetation+management+framework+in+Queensland

DNRM (2013) Vegetation Management Framework Amendment Act 2013. Accessed online on 22 July 2013: http://www.nrm.qld.gov.au/vegetation/vegetation-management.html

Persijn, S & G, Ayriss (2013) Vegetation Management Framework Amendment Bill introduced to streamline Queensland’s vegetation regulations.  Accessed online on 22 July 2013: http://www.findlaw.com.au/articles/5128/planning-and-environment-alert-vegetation-manageme.aspx

Rowell, P & S Stoddart (2013) Key changes proposed to Queensland’s vegetation management legislation. Environment and Development Directions Alert (Qld) – 2 May 2013. Ashurst, Brisbane.