Vegetation Clearing (Qld) | Armstrong Legal

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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Vegetation Clearing (Qld)


Laws for vegetation management in Queensland are strict and complex. They are mainly found in the Vegetation Management Act 1999 and the Planning Act 2016. 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. Further, some local councils can impose requirements on vegetation clearing.

Definitions

The Vegetation Management Act 1999 defines “vegetation” as a native tree or plant other than:

  • grass or non-woody herbage;
  • a plant within a grassland regional ecosystem prescribed under a regulation;
  • a mangrove.

Other laws can regulate the excluded vegetation. For instance, the clearing of mangroves is governed by the Fisheries Act 1994.

To “clear” vegetation means to remove, cut down, ringbark, push over, poison or destroy it in any way including by burning, flooding or draining, but does not include destroying standing vegetation by stock, or lopping a tree.

Categories

The Act divides vegetation management into category A, B, C, R and X areas.

Category A

This includes an area that is a declared, offset or exchange area (land set aside for conservation); has been illegally cleared; and is or has been subject to a restoration order.

Category B

This includes an area that contains remnant vegetation, or an ecosystem that is endangered or of concern.

Category C

This area contains high-value regrowth vegetation.

Category R

This area is a regrowth watercourse and drainage feature area.

Category X

This area is any area other than a category A, B, C or R area.

Factors in decisions

When deciding on whether clearing is permitted for a particular areas, many factors must be considered. These include:

  • the type of vegetation;
  • the tenure of the land (e.g. whether it is owned or leased);
  • the location, extent and purpose of the clearing;
  • who proposes to do the clearing;
  • whether native title restrictions, self-assessable codes or exemptions apply.

Codes

The first step in determining laws which apply to clearing on a property is to obtain a property report and vegetation map. The next is to find the accepted development vegetation clearing code that matches the clearing purpose. Codes exist for:

  • managing encroachment;
  • clearing for an extractive industry (pit or quarry);
  • managing fodder harvesting;
  • clearing to improve agricultural efficiency;
  • managing regulated regrowth vegetation;
  • managing a native forest practice;
  • necessary environmental clearing;
  • clearing for infrastructure;
  • managing weeds.

The State Government must be notified before clearing begins under a code, and can audit a property to ensure compliance.

Exemptions

Exempt clearing work includes clearing for:

  • agriculture or grazing, such as for fences, roads or tracks;
  • development, under a development approval;
  • bushfires, floods and natural disasters, such as for firebreaks and hazard reduction.

Exemptions can apply under other legislation, including the Forestry Act 1959, Fire and Emergency Services Act 1990, Electricity Act 1994, and Disaster Management Act 2003. Exemptions can also apply to some mining, petroleum and gas activities.

Protected plants

Under the Nature Conservation Act 1992, a clearing permit may be required before clearing protected native plants. An exemption may apply if the clearing:

  • complies with a development vegetation clearing code for managing weeds or encroachment;
  • is for fire management;
  • is to manage serious risks to people or buildings or infrastructure.

Koalas

The South East Queensland Regional Plan area contains mapped koala habitat areas, to which protections apply. Under the Planning Act 2016, a development approval may be needed before clearing can occur in a koala habitat.

An exemption may apply if the clearing:

  • complies with a development vegetation clearing code;
  • is for fire management;
  • is to manage serious risks to people or buildings or infrastructure;
  • is needed as a result of a declared disaster situation.

Enforcement

An authorised officer can conduct investigations and inspections to monitor and enforce compliance. They have power to enter a place without consent where they reasonably suspect a vegetation clearing offence is happening or has happened. They can use force that is necessary and reasonable in the circumstances. The officer can then search any part of the place; inspect, measure, test, photograph or film any part of the place or anything at the place; take a sample for analysis; copy a document; and require the occupant to help the search or provide information. They can seize any item that may be evidence of a vegetation clearing offence under a warrant, or without a warrant if they believe the seizure is needed to prevent the item from being hidden, lost or destroyed, or used to continue or repeat the offence.

An authorised officer can issue a stop work notice which requires a person to stop committing a vegetation clearing offence or not to commit that type of offence again. They can also issue a restoration notice, which requires a person to take steps to rectify the vegetation clearing damage within a specified period.

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

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