FAQs

Page 3 of Discussion Paper

Given the time since the Native Vegetation Act 1991 (Act) was last amended, parts of the Act have become outdated, complicated, and difficult to implement. 

To improve decision-making, provide more clarity and to provide for enhanced management of native vegetation, amendments have been proposed based on issues encountered by the Native Vegetation Council (Council), Department for Environment and Water (DEW) and raised by stakeholders. 

There is no intention to reduce or weaken any protections for native vegetation. Equally, it is not proposed that the amendments will impose any new or increased barriers to obtaining clearance approval.

Page 9 of Discussion Paper

Intact stratum is defined as a layer of vegetation that has not been seriously degraded by human activity during the immediately preceding period of 20 years (excluding any degradation by fire). The current definition lacks clarity, is subjective and is therefore difficult to apply. 

The Act also currently prohibits the Council from approving clearance of any intact native vegetation. For example, clearance of one shrub or a branch within an area of intact vegetation cannot currently be approved. 

The amendments propose to clarify the definition and to allow very minor clearance of intact vegetation where it will not impact on the integrity of the vegetation.

Page 9 and 14 of Discussion Paper

Four options are available to achieve a SEB offset. The amendments propose to clarify the obligations (while retaining all 4 options), as well as clarifying how the Council should determine if a SEB has been achieved.

Page 10 of Discussion Paper

The amendments propose to introduce an expert-based membership approach to the Council, with 7 members with a range of relevant skills. 

In addition to the requirement that all 7 members have experience and knowledge in native vegetation management, the members would also hold specific knowledge and experience in native vegetation management and preservation, primary production, planning and development, Aboriginal traditional land management, environmental law, biodiversity conservation, and civil or environmental engineering. 

This will not only ensure that the Council has technical knowledge and practical experience, but also enable nominees to be recruited from a broader pool of potential candidates. 

Under the proposal, existing nominating bodies (the Conservation Council of South Australia, Primary Producers SA, and the Local Government Association of South Australia) will continue to have the opportunity to give recommendations on prospective member(s) which the Minister must consider.

The proposed approach is anticipated to reduce administrative burden for peak bodies by enabling them to recommend or provide feedback on the suitability of proposed appointments rather than needing to identify a panel of 3 nominees as is the current case.  

Page 10 of Discussion Paper

The Native Vegetation Fund (Fund) is administered by the Council, and comprises of money from a range of streams, including State appropriation, fees, interest and payments made in association with clearance of native vegetation. 

The expanded use of the Fund is proposed to enable funds not associated with clearance, offsets or penalties to be used to support the administration and operation of the Act. Funds associated with offsetting clearance or penalties are proposed to be used for a greater range of conservation-related activities such as assistance to landowners to purchase property and undertake research, and offer a wider range of incentive programs. 

Existing measures that provide transparency and integrity to the use of the money from the Fund will continue to apply, including statutory annual reporting.

Page 11 of Discussion Paper

The proposal is to introduce Conservation Agreements between the Council and the land owner, and to remove Management Agreements. Conservation Agreements are similar to Heritage Agreements in that they provide long-term protection of native vegetation, however, they are more flexible in terms of who is party to the agreement, they provide for a range of conservation activities, and may be term limited. This is different to Heritage Agreements which are in perpetuity and require the agreement of the Minister for Climate, Environment and Water, the Council and the land owner. This will give greater alternatives for the protection of native vegetation.

Pages 12-14 of Discussion Paper 

Currently activities which require Council approval follow one of the 2 available pathways: under the Act, or under the Native Vegetation Regulations 2017 (Regulations).

The amendments propose to move activities such as applications for new buildings, dwellings, infrastructure, and residential subdivisions from the Regulations into the Act. 

This means all applications to clear will follow one application process, require consistent information and have the same application fees. The amendment will provide for administrative efficiencies, but not alter the likelihood of gaining approval.  

Page 13 of Discussion Paper

Currently there are 3 circumstances where clearance can be approved when it is seriously at variance with the principles of clearance. The proposed amendment consolidates and clarifies these circumstances. This will make administering these provisions more effective.

Page 14 of Discussion Paper

The referral of development applications involving clearance of native vegetation to the Council under the Planning, Development and Infrastructure Act 2016 (PDI Act) is not changing. Currently, the Council has 20 business days to undertake a range of tasks in order to assess and respond to the referral. Some of these tasks are also undertaken as part of the native vegetation application process. 

It is proposed to ensure that tasks undertaken under the PDI Act referral process are not duplicated in the clearance application process under the Act, and to clarify what the Council must consider within the 20 business days for PDI Act referrals.

Page 15 of Discussion Paper

It is proposed to add Compliance and Reparation Orders to the current compliance options. This will provide a more appropriate ‘mid-range’ option for the Council to utilise for unauthorised clearance. For example, in the circumstances where someone is willing to make-good the breach or has cleared inadvertently, this mechanism provides a reasonable and contemporary option for the Council to require restoration actions.

The Hydrogen and Renewable Energy (HRE) Act? 

The Hydrogen and Renewable Energy Act seeks to facilitate a licencing and regulatory system for largescale hydrogen and renewable energy projects. The clearance application process and offsetting requirements for HRE projects will follow a similar process to Mining and Petroleum activities. The Council approves a management plan that results in a SEB. 

The Proposed Biodiversity Act?

There may be changes to the Act required as a result of the proposed Biodiversity Act. These will be managed at the time of drafting the proposed Biodiversity Act. 

Significant and Regulated Trees?

Changes to the Regulations will be required on the passage of the Native Vegetation (Miscellaneous) Amendment Bill 2023. Planned changes include clarifications to improve protections for trees by preventing clearance in ambiguous situations. Improving alignment with the PDI Act will also support administrative efficiency and avoid confusion and ambiguity. Consultation on planned changes to the regulations will occur after the Native Vegetation (Miscellaneous) Amendment Bill 2024 has passed Parliament.