Vegetation Clearing (ACT)

Laws for vegetation clearing in the Australian Capital Territory are strict and complex, and relate to reserves. They are mainly found in the Nature Conservation Act 2014. If proposed clearing will have a significant impact on matters of national environmental significance, approval may be needed under the Environment Protection and Biodiversity Conservation Act 1999.

Definitions

“Native vegetation” means indigenous trees, understorey plants, groundcover of grass or herbaceous vegetation, and plants in a wetland or stream.

A “native vegetation area” is an area where:

• 10% or more is covered with vegetation (dead or alive; and
• no more than 60% of the ground cover is exotic annual vegetation; and
• more than half of the perennial ground cover is native vegetation; or
• trees or shrubs indigenous to the area have a canopy cover of 10% or more over the area.

“Clearing” native vegetation includes cutting down, felling, thinning, logging, removing, burning, or any other action that kills, or is likely to kill, native vegetation.

“Reserve” includes a wilderness area, national park, nature reserve and catchment area.

Vegetation clearing offences

If a person clears native vegetation in a native vegetation area in a reserve, they face a maximum penalty of a fine of 50 penalty units ($9000). This is a strict liability offence, meaning there is no need to prove an intention to commit the offence; the act is enough for the person to be guilty of the offence.

If that clearing causes material harm to the reserve, and the person knows the vegetation is native vegetation, that the area is in a reserve, and that the clearing causes serious harm, the maximum penalty is a fine of 1500 penalty units ($240,000), imprisonment for 5 years or both. If a person is reckless in committing this offence, the maximum penalty is a fine of 1000 penalty units ($160,000), imprisonment for 2 years or both. If a person is negligent in committing this offence, the maximum penalty is a fine of 750 penalty units ($120,000), imprisonment for 1 year or both.

If that clearing causes serious harm to the reserve, and the person knows the vegetation is native vegetation, that the area is in a reserve, and that the clearing causes serious harm, the maximum penalty is a fine of 2500 penalty units ($400,000), imprisonment for 7 years or both. If a person is reckless in committing this offence, the maximum penalty is a fine of 2000 penalty units ($320,000), imprisonment for 5 years or both. If a person is negligent in committing this offence, the maximum penalty is a fine of 1500 penalty units ($240,000), imprisonment for 3 years or both.

Vegetation clearing causes material harm if it occurs in a wetland, the area of clearing is between 0.2ha and 2ha, and the restoration cost is between $5000 and $50,000.

Vegetation clearing causes serious harm if:

• it causes the loss of, or the loss of part of, an ecological community that is critically endangered, endangered or vulnerable;
• it causes a substantial loss of native habitat for plants or animals;
• it happens in a Ramsar (internationally important) wetland;
• the total cleared area is more than 2ha;
• the restoration cost is more than $50,000.

It is a defence to prosecution for an offence if the person took all reasonable precautions and exercised all appropriate diligence to prevent committing the offence.

Court orders

A court can order a person to take any action it considers appropriate, such as to mitigate the effect of the clearing, or to restore native vegetation in the cleared area. It can also order the person to pay the ACT Government the costs the government incurs in ensuring these actions are taken. The court can make orders on request or on its own initiative, and in addition to, or instead of, any other penalty it imposes.

If a person is convicted or found guilty of a vegetation clearing offence, the court can order the person to publicise the offence, the environmental and other consequences of the clearing, any court order made, and any action taken by the person to mitigate the effect of the clearing or to restore native vegetation in the cleared area.

For advice or representation in any legal matter, please contact Armstrong Legal.