Vegetation clearing laws are again in the spotlight, with the Queensland Government introducing the Vegetation Management and Other Legislation Amendment Bill 2018 (the Bill) into parliament on 8 March 2018. The controversial Bill contains many components of the previous vegetation clearing “re-instatement” bill, introduced in 2016, which was defeated on the floor of parliament. The Bill re-establishes controls on regrowth vegetation and targets broad-scale clearing associated with agricultural activities.

Key points

  • If passed, the Bill will increase the level of control on clearing, by changing some areas of vegetation that are currently unregulated (Category X on the regulated vegetation maps) to regulated areas (Category C or R);
  • The new Category C area controls will apply to “high value regrowth vegetation” on leasehold, freehold and indigenous land, as well as land subject to an occupational license or a lease under the Land Act 1994 for agricultural or grazing purposes. The new category R area controls will apply to vegetation within 50m of a watercourse in all the Great Barrier Reef catchments.
  • “High value regrowth vegetation” will be defined as vegetation that has not been cleared for 15 years.
  • Restrictions will also apply to clearing native vegetation that is essential habitat for protected wildlife that is “near threatened”, not just endangered and vulnerable.
  • The Bill also proposes changes that will prohibit clearing for some agricultural activities.
  • Many of the changes proposed already have effect due to the operation of the transitional provisions of the Bill.
  • Unlike the 2016 bill, the new Bill does not attempt to reverse the onus of proof, or remove ‘mistake of fact’ as a legal defence.
  • Submissions on the Bill are due by 22 March 2018. It is important to review the proposed maps and make a submission if they show a change to the conservation class of vegetation shown on your land.

The new draft mapping is currently available on the Department’s website. It shows not only new areas of Category C and Category R regrowth vegetation, but also changes to the extent of remnant vegetation.

Structure

The Bill is structured in two parts:

  • transitional provisions which apply in the interim period (from 8 March 2018 when the Bill was introduced, to the date it is passed); and
  • ongoing changes to vegetation controls (which will operate from the day the Bill becomes law).

Notably, if passed, the new vegetation clearing laws will have retrospective effect due to the operation of the transitional provisions.

Transitional provisions

The transitional provisions which will be inserted into the Vegetation Management Act 1999 (VMA) and the Planning Act 2016 (Planning Act) are particularly important. They operate in the “interim period” (8 March 2018 when the Bill was introduced, to the date it is passed) and:

  • protect applications for clearing made before 8 March 2018 and approvals in effect before 8 March 2018 (in certain circumstances);
  • distinguish between applications for PMAVs made before 8 March 2018, and those made after 8 March 2018;
  • invalidate certain other applications made after 8 March 2018; and
  • include measures aimed at addressing any unlawful clearing undertaken in the “interim period”.

Applications that were “properly made” before 8 March 2018 must be dealt with and decided in accordance with the existing regime (i.e. the changes introduced by the Bill will not apply).

Existing development approvals that had effect immediately before 8 March 2018 are also not affected.

However, the exemption for existing approvals only applies to “development” under the “development approval”. It does not extend to other development that may be required to implement an approval. For instance, an existing approval for material change of use or reconfiguration of a lot is not affected, but if further approvals are required for operational work to clear vegetation, those approvals will not be covered by the exemption in the transitional provisions. Instead, developers will need to look closely at whether the existing exemptions in the Planning Regulation 2017 apply. Urban development is frequently able to rely on the “urban purpose” in an “urban area” exemption. Problems may arise for urban development in investigation areas or the urban fringe where land may not be zoned for urban purposes, particularly if the original application for the approval was not referred to the State for vegetation clearing.

For PMAVs, if an application was made but not decided before 8 March 2018, it must be dealt with and decided as if the Bill (including its transitional provisions) had not commenced. That is important for any PMAV applications made before 8 March 2018 as Category X areas will remain unaffected. If a PMAV application is made during the interim period, the chief executive may decide to change an existing Category X area to a Category C or Category R area.

Applications for operational work for “high value agricultural clearing” or “irrigated high value agricultural clearing” made after 8 March 2018 are essentially invalidated. The application is taken to not have been made and any decision on the application is of no effect. The same applies to applications for a material change of use that involves “high value agricultural clearing” or “irrigated high value agricultural clearing” made after 8 March 2018.

During the interim period, any application made to clear regrowth vegetation in the new Category R or Category C areas will be invalidated. The new definition of “high value regrowth vegetation” (i.e. vegetation that has not been cleared for 15 years) will be read into the existing section 22A of the VMA. That means clearing in a new Category C or R area will be removed as a “relevant purpose” under the VMA. The new Category C accepted development vegetation clearing code “Managing Category C regrowth vegetation” (which removes the ability to clear for “high value agricultural clearing” or “irrigated high value agricultural clearing) also applies.

The changes to the essential habitat mapping to include areas for near threatened wildlife, also apply during the interim period. Any provisions in the accepted development vegetation clearing codes which refer to “essential habitat for protected wildlife” are taken to apply to near threatened wildlife. This will restrict clearing in the new essential habitat areas, shown on proposed new essential habitat mapping.

In anticipation of pre-emptive clearing, the Bill also gives the chief executive the power to issue a “restoration notice”. For instance, if unlawful clearing of regrowth vegetation is undertaken, a restoration notice may require a person to restore the land. The power also extends to include “additional requirements” which could include the requirement to restore additional land that was not the subject of the unlawful clearing. The “restoration notice” provisions apply to what would otherwise be a development offence under the Planning Act.

No compensation is payable in connection with the transitional provisions, despite the fact they have retrospective effect.

Ongoing changes

Once the Bill is passed, the definition of “high value regrowth vegetation” will be amended to extend to vegetation that has not been cleared for 15 years on freehold land, indigenous land and to land subject to an occupation licence or a lease under the Land Act 1994 for agricultural or grazing purposes. The area must contain an endangered, of concern or a least concern regional ecosystem. This amended definition is reflected in the new mapping, which alters some Category X areas to Category C and Category R areas.

Section 22A of the Vegetation Management Act will be amended so it is no longer possible to make an application for clearing in the new Category C and Category R areas. Section 22A will also be amended so that applications for “high value agricultural clearing” or “irrigated high value agricultural” clearing are prohibited (i.e. clearing in those categories will be removed as a “relevant purpose” under the VMA and become prohibited under the Planning Act).

Limited clearing will still be permitted in a Category C area, provided it complies with the new Category C accepted development vegetation clearing code (Accepted development code - Managing category C regrowth vegetation dated 8 March 2018). The code allows self-assessable clearing, provided it is for one of the limited purposes (e.g. public safety, necessary infrastructure, thinning of thickened regrowth vegetation). Notification must first be given to the Department of Natural Resources, Mines and Energy (DNRME) and the clearing cannot start until the DNRME provides written confirmation of the notification. A separate notification must also be given for each lot and previous notifications, under the now superseded code no longer apply. If a notification had previously been given, a new notification is now required. Any clearing must now comply with the requirements of the new code.

The definition of protected wildlife will be extended to cover near threatened wildlife. It seems likely that the accepted development vegetation clearing codes will be remade after the Bill becomes law, to deal with the new areas of essential habitat.

The amended VMA will include new requirements for applications for “managing thickened vegetation” (the new and extended definition which covers activities previously captured by the “thinning” definition). The new requirements include identifying the location and extent of the proposed clearing, demonstrating that the vegetation has thickened in comparison to the same regional ecosystem in the bio-region, the selecting clearing methods proposed to be used and evidence that clearing will be limited to the prescribed regional ecosystem and restricted in the way prescribed by regulation under the Planning Act.

There are also a range of new enforcement powers, including enforceable undertakings. Unlike the 2016 bill, the new Bill does not attempt to reverse the onus of proof or remove ‘mistake of fact’ as a legal defence.

Supporting legislation

The Bill is supported by two other amending regulations - the Vegetation Management (Clearing Codes) and Other Legislation Amendment Regulation 2018 (Clearing Codes Amendment Regulation) and the Vegetation Management (Regional Ecosystems) Amendment Regulation 2018 (Regional Ecosystems Amendment Regulation).

The Clearing Codes Amendment Regulation commenced on 9 March 2018. It alters the Vegetation Management Regulation 2012 (VMR) to reference the new:

  • ‘Managing Category C regrowth vegetation’ code made by the Minister on 7 March 2018. This code replaces the previous code made on 14 November 2013, and includes amendments that mean the code will not apply to “high value agricultural clearing” or “irrigated high value agricultural clearing.
  • “Managing Thickened vegetation” code also made on 7 March 2018. This code replaces previous codes made in 2014 which related to managing thickened vegetation in various bioregions across Queensland.

The Regional Ecosystems Amendment Regulation amends schedules 1 to 5 of the VMR to:

  • list 156 new regional ecosystems and remove 84 regional ecosystems;
  • change 24 regional ecosystems to a higher conservation class (e.g. from least concern to of concern); and
  • change 17 regional ecosystems to a lower conservation class (e.g. from of concern to least concern).

The Queensland Herbarium’s version 10 mapping (on which the changes are based) has apparently been available on the Department’s website since December 2016. The changes introduced by this regulation perhaps explain why the regulatory vegetation mapping has changed to include new remnant vegetation, and not just the new category of “high value regrowth vegetation”.

Differences to 2016 Bill

The new Bill contains some provisions that were not in the 2016 bill, and abandons some of the changes that were earlier proposed.

In particular, the provisions relating to essential habitat for near threatened species were not mooted in 2016, nor were the new requirements for an application for managing thickened vegetation. Occupational licences were not previously caught by the proposed high value regrowth vegetation definition.

As noted above, the new Bill does not attempt to reverse the onus of proof, or remove ‘mistake of fact’ as a legal defence. Those were particularly controversial elements back in 2016. Under the Bill, no changes are proposed to the Environmental Offsets Act 2014, but that does not rule out changes being made as part of a later suite of reforms.

What should I do?

The proposed regulated vegetation management maps and essential habitat maps, which show the proposed Category C and R areas, as well as the extent of essential habitat for near threatened wildlife, are now available on DNRME’s website. The transitional provisions indicate that the maps may be re-published during the interim period, suggesting the mapping is not yet set in stone.

The Bill has been referred to parliamentary committee, with submissions due by Thursday 22 March 2018. The committee is required to report back to the Parliament by 23 April 2018.