• Environmental Planning

Blast from the past – Reinstatement of Ecological Regulation

The Vegetation Management (Reinstatement) and Other Legislation Amendment Bill 2016 (VMROLA Bill) was introduced to the Queensland Parliament on 17 March 2016 and was subsequently referred to the Agriculture and Environment Committee for review. The outcome of the review is to be delivered on 30 June 2016. Overall, the VMROLA Bill seeks to reinstate land clearing regulation in Queensland that was in place until amendment by the former Government. This includes re-introduction of regulation of High Value Regrowth vegetation under the Vegetation Management Act 1999 and Riverine Protection Permits under the Water Act 2000. Amendments also include revision of the Environmental Offset Act 2014.

Given that the VMROLA is under review, it is yet to be seen whether it is ever enacted as legislation and if so what form an enacted version may take following parliamentary debate. Public submissions on the Bill are open until 25 April 2016. This blog briefly outlines some of the amendments proposed by the VMROLA Bill at the time of writing that we find to be of interest from ecological approvals and environmental offsets planning perspectives. We note that the VMROLA Bill does carry transitional provisions which generally have the effect of activating the level of regulation proposed by the VMROLA from 17 March 2016 to assent of the VMROLA Act. Given that this blog is general and summarised in nature, it does not provide project or situation specific advice.

Amendment of the Vegetation Management Act

Some of the proposed amendments to the Vegetation Management Act 1999 are:

  • Reinstatement of regulation of High Value Regrowth (HVR) on freehold and indigenous land;
  • The VMROLA Bill does not propose to alter the requirement for HVR to be a regional ecosystem that has not been cleared since 31 December 1989;
  • The State Government has released the ‘Proposed Regulated Vegetation Management Map’ (which can be accessed at https://www.qld.gov.au/environment/land/vegetation/map-request/ or Queensland Globe). This mapping enables a land manager to check whether their property is designated (at desktop level) as hosting HVR;
  • The transitional provisions of the VMROLA Bill specify an Interim Period (17 March until assent of VMROLA Act) which has the effect of regulating most clearance of HVR during the Interim Period;
  • Management HVR on Freehold and Indigenous land will need to accord with a self-assessable vegetation clearing code;
  • The VMROLA Bill prescribes that for Property Map of Assessable Vegetation (PMAV) applications made through the Interim Period, areas shown as Category X by the chief executive take no effect where these areas exhibit HVR (Category C or Category R areas). In other words, PMAV applications made or undecided during Interim Period will be assessed for presence of HVR;
  • The VMROLA Bill imposes responsibility for illegal clearing on the occupier of the land. In short, ignorance of the unlawful nature of a clearing action would no longer be an allowable defence. The burden of proof would be on the occupier to demonstrate that they were not responsible for the clearing. The VMROLA Bill requires that the chief executive serve a person a restoration notice if they undertake unlawful clearing during the Interim Period;
  • It appears that the re-introduction of HVR would not have a significant impact on urban development undertaken in urban areas. However may have significant ramifications for development in rural areas and agricultural land uses, particularly those that require broad scale clearing;
  • The VMROLA Bill removes certain agricultural land use purposes (i.e. High Value Agriculture and Irrigated High Value Agriculture) from the list of Relevant Purposes under section 22A of the Vegetation Management Act 1999; essentially prohibiting assessable clearing for these purposes; and
  • Further to the point above, the VMROLA Bill also restricts clearing of HVR for grazing or agricultural purposes on freehold, indigenous or lease (under Land Act 1994) lands.

Amendment of the Environmental Offsets Act

Some of the revisions proposed by the VMROLA Bill to the Environmental Offsets Act 2014 (EO Act) are:

  • The VMROLA Bill proposes changes to the EO Act which could broaden the range of projects that require environmental offsets by reducing the severity of environmental impacts that trigger an offset. In summary, a Significant Residual Impact on a Prescribed Matter currently may trigger an environmental offset under the EO Act. Currently, a Significant Residual Impact is defined as an adverse impact on a Prescribed Matter. The VMROLA Bill proposes that section 8 of the EO Act be revised to omit use of the term ‘significant’ so that a ‘Residual Impact’ on a Prescribed Matter may trigger an environmental offset and a Residual Impact could be defined as an ‘Impact’;
  • The above point would result in the need for amendment to the current Queensland Government Significant Residual Impact Guidelines which are used to determine the magnitude of an impact in a planning sense;
  • By proposing the insertion of a Part 11A to the EO Act, the VMROLA Bill introduces the option for a Commonwealth Offset Condition (i.e. under the Environment Protection Biodiversity Act 1999 (EPBC Act)) to be acquitted by paying a financial settlement to the State Government. This essentially gives the State Government a role in establishment and management of Commonwealth offsets. We note that this amendment does not preclude the applicant from delivering their own Commonwealth offset; and
  • Proposed Part 11A also sets up framework to enable environmental offsets delivered under the EPBC Act to cover off on conservation outcomes of the EO Act and vice versa. From our interpretation of proposed section 89C (a) of Part 11A, there is concern that a Commonwealth-approved offset proposal could be assessed again by the State to enable it to form a view on ‘if the offset is selected, designed and managed to maintain the viability of the matter’. This could potentially cause duplication or extension of offset requirements. We note that currently, section 15 of the EO Act restricts an administering agency from imposing an offset condition that is substantially the same as that imposed by a higher level of Government.

Reintroduction of Riverine Protection Permit Framework under Water Act

Some of the revisions proposed by the VMROLA Bill to the Water Act 2000 (Water Act) are:

  • The requirement for a Riverine Protection Permit (RRP) under the Water Act is to be reinstated where an activity proposes to destroy vegetation in a watercourse, lake or spring; excavate in a watercourse, lake or spring or place fill in a watercourse, lake or spring;
  • VMROLA Bill includes criteria for deciding an application for an RRP; and
  • Of note is that the definition of Vegetation under the Water Act is broader than that of the Vegetation Management Act and includes seedlings, saplings, reshoots, bushes, shrubs and trees.

 

Feel free to contact Nelson Wills (07 5575 7308 or nwills@newground.com.au) should you have any questions on the above.

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