response to consultation on the draft native vegetation...

Response to consultation on the

draft Native Vegetation

Regulations 2016

November 2016

2

Disclaimer

While every reasonable effort has been made to verify the information

in this fact sheet use of the information contained is at your sole risk.

The Department recommends that you independently verify the

information before taking any action.

Licensed under Creative Commons

Attribution 3.0 Australia License

www.creativecommons.org/licenses/by/3.0/au

Copyright Owner: Crown in right of the

State of South Australia 2016

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Contents

Introduction 5

Part 1: Key messages and themes 6

Part 2: Specific comments and responses 8

Part 3: Response to general issues raised 44

Part 4: Next Steps 50

Appendix 1: YourSAY Facebook summary + posts comment captures 51

Appendix 2: Results to YourSAy questionnaire 54

Appendix 3: Summary of Native Vegetation Reforms 55

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Acronyms/Abbreviations DEWNR – Department for Environment, Water and Natural Resources

SA CFS – South Australian Country Fire Service

NV Act - Native Vegetation Act 1991

NVC - Native Vegetation Council

NVMU – Native Vegetation Management Unit, DEWNR

Regulations –Native Vegetation Regulations 2003

Draft Regulations – draft Native Vegetation Regulation 2016

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Introduction

Over the past two years the Native Vegetation Regulations 2003 (the Regulations) have been reviewed as

part of a routine 10-yearly review. The aim of the review was to reduce the complexity that had developed

since 2003. The new draft Regulations have been developed to improve stakeholder’s ability to understand

the details of clearance assessment and approval, thereby improving both transparency and certainty.

Consultation commenced in October 2014 when the intent of the current regulations was tested with major

stakeholders. During March 2015, this was followed up with a report with outlining two proposals for how

the Regulations could be revised. At this stage the focus was on engaging with agencies who are involved

in clearance activities under the Native Vegetation Act 1991 (Department of State Development, Primary

Industries and Regions SA, Department of Planning, Transport and Infrastructure) and peak bodies (Primary

Producers SA, Conservation Council SA, Local Government Association and South Australian Chamber of

Mines and Energy)

Following an iterative review process with stakeholders during this time, the draft Native Vegetation

Regulations 2016 were able to proceed with formal consultation from 4 July - 15 August 2016, with a

number groups and organisations granted two week extensions.

DEWNR received 66 submissions from government agencies, non-government organisations, local

government and individuals, which includes 30 responses to a survey on the YourSAy website.

The number of submissions is considered low, and does not appear to be commensurate with the level of

concern directed towards DEWNR about South Australia’s vegetation clearance legislation (both for and

against). The majority of organisations that registered detailed submissions either use the Regulations

(directly or as ‘delegated’ by the Native Vegetation Council) or were from the conservation sector. The

YourSAy website did facilitate increased engagement from individuals, and very few individuals’ submitted

letters.

Structure of this document

Part 1 provides a brief overview of the key issues that arose from consultation;

Part 2 addresses specific comments received;

Part 3 addresses general themes and concerns raised in the submissions; and

Part 4 describes next steps for the Native Vegetation Regulation Review.

The appendices capture a more detailed summary of the consultation statistics from social media

(Appendix 1); describe the results of the YourSAy questionnaire (Appendix 2); and summarise the other

Native Vegetation Reforms (Appendix 3) that will support the implementation of the Regulations.

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Part 1: Key messages and themes

Who made submissions?

DEWNR received 66 submissions from government agencies, non-government organisations, local

government and individuals, which includes 30 responses to a survey on the YourSAy website (see Table 1

for the breakdown by group).

The statistics on the reach of the consultation through social media can be found in Appendix 1.

Of the 30 YourSAy survey responses (see Appendix 2), the majority outlined concerns with the approach

taken to the review of the Regulations and commented that the review resulted in reduced protection for

native vegetation. Few individuals supported the proposed Regulations. The range of general concerns

raised are addressed in Part 3 of this report.

A total of 13 comments were added to the discussion board on YourSAy, most of which expressed general

concerns with the current system. Many comments were based on misunderstandings of the details of the

Regulations, which is not surprising given the level of complexity that had developed. This highlights the

need for the NVC and NVMU to ensure that good communication tools are developed to educate people

about the new Regulations.

Table 1. Summary of submission type to the public consultation phase of the draft Native

Vegetation Regulations 2016.

Submission type

by group

Total number of

submissions

Government agency 11

Environment groups 14

Individuals 5

Industry peak body 2

Local Government 2

Academics/researchers 2

YourSAY surveys 30

TOTAL 66

The range of views expressed about the draft Regulations reflected the typical comments and concerns

that DEWNR regularly receives on the native vegetation management framework in SA. The major take

home messages and themes are summarised below.

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The consultation revealed that:

few people have a good understanding of the current Regulations and the native vegetation

legislative framework in South Australia more broadly;

the revised Regulations achieved a much greater understanding of the Regulations, allowing

stakeholders to more adequately interrogate and comment/query the Regulations;

within the conservation sector the increased understanding created a great deal of alarm about the

current level of exemptions to the Act, and led to the conclusion that the changes were ‘reducing’

the protection on native vegetation;

Government agencies and other organisations who use the Regulations were supportive of the

simplification of the Regulations structure and format (the approval/assessment pathways), and

supported the introduction of the risk assessment pathway;

some conservation organisations provided some general support for the intent to clarify the

Regulations, however, they also raised a wide range of issues that relate to ‘loopholes’ and lack of

accountability or adequate offsetting (Significant Environmental Benefits) of approved clearance;

the community sector raised concern with the fire hazard reduction pathway where the CFS has

‘complete control’ of vegetation clearance;

dealing with cumulative impacts, particularly from small permitted clearances, should be a serious

consideration;

the mitigation hierarchy is well supported however its application needs much greater rigour;

more information was required on the risk assessment pathway to allow people to make better

informed comments. Several organisations sought to contribute to the development of details for

this approach;

the majority of the changes to the activities listed in the Regulations, and the criteria for each,

raised minimal concern, and there were a range of useful comments on improvements.

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Part 2: Specific comments and responses

The organisations who responded with comments on the draft Regulations is contributed to the specific

comments is listed in Table 2. The majority of the specific comments received and proposed changes to the

Regulations are outlined in Table 3. Note several responses were received quite late and are not directly

addressed in the table.

Table 2. List of organisations (not including individuals) contributing comments to the draft Native

Vegetation Regulations 2016

Birdlife – Red-tailed black cockatoo recovery team

Central Hills Green Web

City of Onkaparinga

Conservation Council SA

Department for Planning, Transport and Infrastructure

Department for State Development – Minerals and Exploration Divisions

District Council of Lower Eyre Peninsula

Environmental Defenders Office

Gawler Environment and Heritage Association

National Trust SA

Native Orchid Society of SA

Natural Resources Adelaide and Mount Lofty Ranges

Natural Resources Eyre Peninsula

Natural Resources Kangaroo Island

Natural Resources SA Arid Lands

Natural Resources SA Murray Darling Basin

Natural Resources South East

Nature Conservation Society of SA

Nature Foundation SA

North East Hills Environmental Conservation Association

Pastoral Board SA

Primary Industries and Regions SA

Primary Producers SA

SA Chamber of Mines and Energy

SA Water

St Agnes Bushwalking and Natural History Club

Tennyson Dunes Group

Threatened Plant Action Group

Trees for Life

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Proposed key changes explained

In summary, there are four key changes to the draft Regulations that have resulted from submissions. They

are:

1. Standard Operating Procedures (SOPs)

SOPs currently exist with several agencies and outline how they meet clearance requirements under the

Act. The review of the Regulations brought about the opportunity to look at whether streamlining

arrangements with partner agencies under a delegated authority would improve administrative

arrangements with the NVC.

After consultation with each agency, it was considered that the existing arrangements are adequate. It

is proposed to retain the current system of using SOPs for SA Water, Forestry SA, DPTI Highways and

Electranet to administer minor clearance and associated offsetting under the Regulations.

Current SOPs will be up-dated by each agency to reflect the new Regulations and related procedures,

including alignment with the risk assessment. The updated SOPs will be provided to the NVC for

endorsement.

2. Permitted clearance (self-assessment pathway)

The permitted clearance pathway generated a lot of concern from the conservation sector and the

general public because it was perceived as a ‘loosening’ of the Regulations, despite being equivalent

with the current Regulations. With the restructuring of the Regulations into approval pathways, and

having the procedural elements upfront in the revised regulations, it has become clearer that certain

activities can occur without approval or oversight by the NVC, and without a SEB. This has raised

concern that potential misuse of the Regulations can occur, and that ‘no net loss’ of vegetation is not

being achieved.

The other issue presented by this pathway is that we have no data on the effectiveness of the

provisions or level of clearances that occur. In addition, any type of vegetation can be cleared, despite

placing a high emphasis on protecting highly valued vegetation and biodiversity (e.g. threatened

species, communities and habitat) throughout the assessment and approval processes for the other

pathways.

Based on the feedback received, it is proposed that several activities should involve notification

(voluntary). This will include providing information on the amount and location of clearance occurring,

and will allow greater emphasis to be placed on the mitigation hierarchy throughout the notification

process. By including this provision to notify, it provides a disincentive to exploit a self-assessed

process; allows proponents to receive a formal record; and allows DEWNR to gather data on permitted

activities.

Specific changes involve:

Notification (voluntary) of permitted clearance (self-assessed activities) for

- New fences

- Vehicle tracks

- Clearance of native vegetation causing management problems (current NVC

Guidelines specify species, locations and clearance methods)

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- Pest plant and animal control (current NVC Guideline exists for managing this by way

of vegetation clearance; additional improvement by adding a formality to notify)

- Clearance for safety of persons and property (the state of the plant must be assessed

by a person with a suitable qualification and the report must be to the satisfaction of

the NVC)

The development of an on-line portal (see appendix 3 for information on other native vegetation

reforms) for applications will facilitate this additional requirement of documenting clearances for

proponents.

Other changes are proposed for new Walking Tracks activity in the permitted clearance pathway. These

include:

Permitted clearance for Walking Tracks will be amended to distinguish between private use

walking tracks and public use walking tracks. Walking tracks for public use will be regulated

under the Recreational Track activity and will be subject to the risk assessment pathway.

The criteria for walking tracks will be reduced from <1 metre in width to <0.5 metres in width

to reinforce the intent clear that this provision is for private use walking tracks, with minimal

use and minimal impact.

3. Removal of the Minor Clearance activity

The Minor Clearance activity was developed as a new provision for the purpose of streamlining

clearances deemed minor that are subject to the rigorous clearance application process under the Act.

Based on past clearance data to define minor clearance criteria, the minor clearance regulation was

intended to be for clearance of very small patches (0.03 hectares) or less than 5 trees.

This provision proved to be particularly contentious with conservation NGOs and the NVMU

recognised that it could potentially lead to unintended consequences and accelerate cumulative

impacts. Submissions received argued that there was no need for a ‘wildcard’ provision to allow

clearance for any purpose as long as it was deemed to meet ‘minor’ criteria.

Although this provision could have assisted with streamlining the overall process, in practice it would

not substantially change how the system currently operates. The majority of current applications fall

within the criteria of other activities listed in the Regulations.

4. Exclusion of permitted clearance activities for new subdivisions

Consultation particularly with the conservation sector and local councils has highlighted that the

‘loopholes’ with permitted clearances (self-assessed activities) has been most prevalent with

subdivisions. It was not the intention that permitted clearances would be ‘bundled’ to facilitate

clearance for other activities.

Currently some developers use a range of permitted clearance activities (that require no approval or

SEB) to undertake considerable clearance. This results in developers being able to bypass the need to

offset the clearance that is required for a subdivision, and also potentially leads to more clearance than

necessary. Also, it often leaves land purchasers unaware of their obligations regarding vegetation

clearance and SEBs.

Improvements between vegetation clearance and development are proposed to be addressed by

encouraging holistic planning for clearance for house sites at the subdivision stage. This provision will

focus on the application of the mitigation hierarchy at the subdivision stage, where the overall and

total clearance footprint can be minimised, than if applied at the individual house site stage (current

process). This provision will also allow for a properly considered and appropriate significant

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environmental benefit to be generated across all areas that require clearance for a house site, at the

subdivision stage, providing a streamlined and certain process for developers, local councils and future

house buyers.

This proposed change was not initially proposed in the draft Regulations, but is a result of the

consultation and NVMU evidence of use of loopholes in this area. The details of this proposed change

still require further consultation.

Table 3 below describes other improvements that will be made based on comments received, as well as

an indication of why some comments will not be incorporated into the new Regulations.

Summary of submissions

Of the 66 submissions, the YourSAy surveys and discussion board, over 200 proposed changes directly

attributable to a Regulation were collated. DEWNR proposes to accept over half (some comments were

double-ups); the other proposals are either comments only or not justifiable to incorporate. Details are

provided in Table 3.

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Table 3: Summary of specific comments directly attributable to a Regulation and response from DEWNR

Draft Reg Title Issue/Proposal Accepted Response

Part 1, s3 Interpretations- Definition of Council

Add to definitions Council means Native Vegetation Council - to prevent confusion between the Native Vegetation Council and the local government council

No As the Regulations serve the Native Vegetation Act, reference to the Council is widely understood to refer to the Native Vegetation Council

Part 1, s3 Interpretation – Definition of Bushfire management plan

Extend definition to include Bushfire management plans that are not encompassed in the current definition e.g. addition of ‘or other bushfire management plan endorsed by the CFS or NVC’

Yes Addresses concern regarding how DEWNRs fire management plans would be approved if they had not been incorporated into the bushfire management plans prepared under the Fire and Emergency Services Act 2005.

Part 1, s3 Interpretation - Definition of Bushfire management plan

Alternative definition to be ‘A plan prepared in accordance with section 73A of the Fire and Emergency Services Act 2005 and approved by the State Bushfire Coordination Committee for the relevant bushfire management area

No Similar concerns raised by DEWNR fire management, will be addressed by addition of ‘or other bushfire management plan endorsed by the CFS or NVC’

Part 1, s3 Interpretation – Definition of dam

Define ‘dam’ No Unapproved water affecting activities that have native vegetation clearance implications is a local issue where approval is required under the Natural Resources Management Act 2004 prior to vegetation clearance approval.

Part 1, s3 Interpretation- Definition of Mining Act

The definition of a Mining Act should include the Mines and Works Inspection Act 1920 (for the purposes of activities at Leigh Creek and Olympic Dam).

No It is uncertain of the basis for the addition of the Mines and Works Inspection Act 1920 as the current definition of a Mining Act should be sufficient.

Part 1, s4 Definition of native vegetation – dead plants

Align the measurement height above the base of the tree to be consistent with the Development Regulations 2008 for regulated and significant trees as 1 m rather than 300 mm above the base of the tree

No Increasing the height to one metre from 300mm may remove smaller dead trees from this definition that provide important wildlife habitat, including for threatened species. It would also create inconsistencies as to how/where it applies across the state.

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Part 1, s3 Interpretation - Definition of Infrastructure

Change the definition of infrastructure to be consistent with section 49 of the Development Act 1993 for crown development and public infrastructure:

Public infrastructure means –

a) The infrastructure, equipment, structures, works and other facilities used in or in connection with the supply of water or electricity, gas or other forms of energy, or the draining of treatment of waste water or sewage;

b) Roads and their supporting structures and works;

c) Ports, wharfs, jetties, railways, tramways and busways;

d) Schools, hospitals and prisons;

e) All other facilities that have traditionally been provided by the State (but not necessarily only by the State) as community or public facilities

In addition, add to c) ‘and their supporting structures and works’ to allow for the inclusion of rail/tram bridges and rail electrification infrastructure.

In addition, the definition should define what it does not include:

Borrow pit or car park

No The current definition in the regulations ends at c) and also includes

d) flood mitigation works;

e) an airstrip;

f) a shipping channel;

g) a public reservoir

There is no justification for having schools, hospitals, prisons and ‘all other facilities that have traditionally been provided by the State (but not necessarily only by the State) as community or public facilities’ in the Native Vegetation Regulations. The Native Vegetation Act 1991 adequately deals with these activities and there is no evidence to suggest otherwise.

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Part 1, s4 Definition of native vegetation – dead plants

Disagree with definition – ‘many smaller plants can provide habitat...’

No This definition of a dead tree has been included in the Regulations in order to provide protection of habitat for EPBC listed species. Accordingly, the size of the vegetation has come from the habitat requirements of those particular species.

It is accepted that smaller plants and even fallen timber is often critical habitat and the NVC encourages the retention of these features in the landscape. However, it is not intended at this time to increase the scope to include these elements.

Part 1, s5(a) Mitigation hierarchy Strengthen 5(a) avoidance to provide greater force that there is a requirement for applicants to demonstrate that they have addressed the first mitigation principle of avoidance. (e.g. remove the words ‘should be’ and ‘wherever possible’ to read ‘avoidance –measures taken to avoid clearance of native vegetation’)

Avoidance should remain core principle; must be applied to direct exemptions, including new buildings, new structure, new subdivisions, infrastructure

Yes The Mitigation hierarchy is a fundamental principle to apply in the context of a regulatory system that facilities clearance in exchange for offsets.

It does apply to all activities prescribed in the regulations, and we will place greater emphasis on this requirement.

Part 2, s6 Guidelines to be prepared by council

Remove the word ‘draft’ in ‘Pursuant to section 25(1)(e) of the Act, the Council is required to prepare draft guidelines in relation to the following’

No Advice from Parliamentary Council is that this cannot be changed.

Part 3, Division 1, s7-8

Permitted clearance Concern that there is no or low visibility of the impact of clearance, teamed with little accountability for self-assessed activities

In part Permitted clearance activities have been transferred over from the 2003 regulations, with only minor changes to increase clarity.

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Part 3, Division 3, s7-8

Permitted clearance A self-assessed process should be encouraged for all native vegetation issues, in the context of landholders being identified as making a positive contribution, not being held to regulations that cause resentment by responsible landholders

No The regulations seek to find the balance between reasonable clearance for everyday activities with the need to protect and restore native vegetation. The regulations seek to encourage protection of native vegetation on properties where clearance is required for reasonable purposes. In addition, a fundamental principle of clearance policy is the provision of Significant Environmental Benefits to offset the impacts of clearance. This principle acknowledges the importance of ‘no net loss’ to existing vegetation to ensure that we retain current values and services it provides. In order to define an appropriate offset for vegetation clearance requires a site assessment to be carried out by vegetation expert, which is not possible via self-assessment. Finally, compliance continues to be an issue, and evidence shows that not all landholders make a positive contribution.

Permitted clearance activities have been transferred over from the 2003 regulations, with only minor changes to increase clarity.

Part 3, Division 1-4

Permitted Clearance; Fire hazard reduction; Vegetation Management

Question why a number of activities do not require SEBs? E.g. roadsides and railway corridors, changing stock regimes

No Activities that include ongoing management of vegetation where the intent is not to permanently ‘clear’ vegetation over time have not had SEBs required in the past. There is no intention to change this position.

Where vegetation may be lost through these regulations, such as clearance on roadsides, the clearance is generally required for safety purposes. Imposing an SEB for safety related matters is unlikely to be acceptable to the public.

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Part 3, division 1, 7(1)(a)

Permitted clearance Addition of clause 7(1)(a) that the following permitted clearance activities should be notified to the NVC:

(i) Vehicle tracks

(ii) Fences

(iii) Plant and animal control

(iv) Native vegetation causing management problems.

In part The provision will be changed to include notification ‘should’ be required as a first step towards increasing transparency of these clearance activities, and collecting data on amount of clearance occurring. The notification process (e.g. an online portal is under development) will also be used to encourage proponents to apply the mitigation hierarchy principles.

Part 3, Division 1 s7

Permitted clearance Add to section 7, ‘any clearance complies with guidelines prepared by the council in accordance with any provisions within permitted clearance’.

Yes Reference to compliance to any section 25 guidelines for a self-assessed activity is required. This is to ensure Guidelines can be applied to any regulation, not only those for which NVC approval is required.

Part 3, Division 1, s7(2)

Permitted clearance-mitigation hierarchy

Strengthen words ‘and endeavor to give effect to’ by removing the word ‘endeavor’ to read ‘a person undertaking, or intending to undertake, clearance of native vegetation under this Part must have regard to, and give effect to, the mitigation hierarchy’.

Yes The Mitigation hierarchy is a fundamental principle to apply in the context of a regulatory system that facilities clearance in exchange for offsets and the requirement to apply it will be strengthened.


Permitted clearance-mitigation hierarchy

Clearance that cannot be avoided or minimised must be offset, and offsets must be in the same area. Oppose paying into the SEB Fund as an option.

No The mitigation hierarchy is a fundamental principle to apply in the context of a regulatory system that facilities clearance in exchange for offsets.

The principles and operation of SEB offsets are dealt with through the SEB Policy and related documents. ‘Like for Like’ is a principle applied wherever possible, within the same area or region. The SEB Fund has been part of the SEB offset approach in SA and there is no intention to change this. Although, NVC has a preference for large clearance activities for on ground SEB as a preference to payment SEB.

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Part 3, Division 1, s7

Permitted clearance Concern over ‘loosening’ of the regulations to allow more clearance. Too many can be used to justify any purpose; many of which require little in the way of consultation or approval.

In part The regulations have been restructured to enable more transparency of how the system currently operates. Requirements for each activity remain unchanged. There are some permitted clearance activities where notification will be sought as a first step (but not mandated at this time, as education is required, and compliance would be difficult).


Permitted clearance The average person cannot be expected to discern native species from weeds, and detect threatened species and factor that into their risk assessment

No Self-assessment and risk assessment are different approval pathways with different requirements. There is no requirement to detect threatened species in the permitted clearance activities. Risk assessed activities are assessed by DEWNR staff or accredited consultants.


Permitted clearance No reference to lapsed period in the provisions taken to imply that requirement to clean drains within a 5 year period is no longer required? In the context of Infrastructure being a public road)

No If a drain is deemed as infrastructure, the clearance of regrowth can occur within the previous clearance envelope regardless of the age of the regrow.

With regards to public roads, there are provisions that address clearance permitted that are specific to public roads. These provisions will be set out in Roadside Management Guidelines.

Part 3, Division 1, s7 and s8

Permitted clearance Monitoring of the regulations will be important in determining if they are producing a positive result in terms of environmental management.

Monitoring for self-assessment of agency clearances to be monitored by reporting through SOPs.

In part Monitoring of clearance occurs routinely for activities other than permitted clearances (Pathway 1). Introducing provisions to encourage notification for some permitted clearances (Pathway 1) will also improve the current system and could also encourage greater compliance.

The vegetation management plan and risk assessment approval pathways are overseen by DEWNR staff and the NVC.

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Part 3, Division 3

Fire hazard reduction Do not support ‘delegations’ in general and delegations to CFS have not been supported by commitments to undertake a range of tasks to underpin decision-making under this Regulation. Has NVC reviewed effectiveness of this (and other) delegations to ensure responsibilities under the Act are being met?

In part The current Delegations, such as to CFS officers, have been in place for many years and these will not be changed at this time. The CFS approval pathway has a requirement for annual reporting to the NVC.

The Standard Operating Systems that underpin the delegations will all be reviewed and updated as part of the implementation of the 2016 regulations.

Following the completion of the current reforms, a review of the effectiveness of delegations could be undertaken if supported by the NVC.

Part 3, Division 3

Fire hazard reduction This pathway is a disaster for native vegetation and not making us safer; Buildings are being approved in inappropriate locations; excessive burning occurring to meet 5% area targets

No The NVC will continue to work with the CFS and Government Agencies such as DEWNR, Forestry SA and SA Water to ensure burning regimes are appropriate and sustainable.

The current development planning reform process (e.g. new DPI Act) provides an opportunity to improve to interactions between development planning and native vegetation clearance and fire, but this is outside of the scope of the NV Regulations review.

Part 3, Division 3

Fire hazard reduction Recommended that all clearances for fire hazard reduction should be subject to review by NRM Board and/or NVC to ensure significant vegetation is not being lost.

In part The NRM Boards and NVC collaborate with the CFS in developing bushfire management plans. The bushfire management plans guide the CFS when making clearance approvals.

Additionally, CFS is required to report annually on the clearance that has been approved under the authorisation. This enables review and analysis of the impacts on native vegetation.

Part 3, Division 4

s11 (1)

Vegetation management – management plans

Remove words ‘with the written approval of the Council’

Yes

Removing duplication in 11 (1) from the clauses that follow 11 (1) (a) (i) and (ii)

Part 3, Division 4

Vegetation management plans

Recommend that the NRM Board provide advice before management plans approved

Yes When preparing a management plan in accordance with guidelines under section 25 of the Act, it is a requirement to consult with the relevant NRM Board prior to NVC approval.

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Part 3, Division 4


NV Act s25 Guidelines are not adequate to prevent cumulative impacts occurring to roadside vegetation

No The guidelines are established under Section 25 of the Act and are therefore legally enforceable. The guidelines aim to limit clearance to only what is required to maintain safe passage. There is a trend to allow increased clearance for safety reasons (e.g. larger clearance envelopes for roads) but NVC has oversight of the guidelines and aim for the appropriate balance with this issue.

Part 3, Division 4


There are a number of additional activities in the regulations that are not defined in Schedule 1 Part 3 – management plan pathway, that require a management plan (for implementation or SEB) e.g. major developments, mining and other risk-assessed activities.

No The management plan pathway describes the activities that have a range of requirements for vegetation clearance that relate to the ongoing management of native vegetation (which is detailed in a management plan).

Management Plans for implementation of SEB’s are a different type of management plan, and are required for all clearance activities where an SEB is required (including major developments and mining).

Part 3, Division 4


There is no reference to the requirement to use accredited consultants for the assessments of sites or preparation of management plans necessitated by this section.

No The vegetation management planning process of activities contained in this part of the regulations are subject to addressing criteria contained in Section 25 guidelines defined by the NVC.

Part 3, Division 4, s11(1)(a)


In relation to activity 25 – Grazing of Domestic Stock, it is recommend that approval of management plans be delegated back to the Pastoral Board as the primary subject matter authority on this matter and to enable the State Government to provide a one stop shop to pastoral lessees.

Comment Section 15 of the Act allows for Delegation of NVC responsibilities. Therefore this Delegation can occur if warranted and approved by the NVC and the Minister. No changes need to be made to the regulations to allow for this to occur.

Part 3, Division 5, s 12

Risk assessment A risk based approach to the management of native vegetation clearance is supported.

Yes For information, the framework for the risk approach is not defined in the regulations, the methods for assessment are currently being developed and form NVC policy.

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Risk assessment It would make sense for the risk based assessment process to be applied broadly to activities not already covered by exemptions in parts 1, 2 and 3 of Schedule 1; not just to ‘minor clearance’ and a small number of specified activities (for example, for activities not covered by the permitted clearance applying to existing agriculture, forestry or farming).

No The application of a risk-based approach for the majority of activities was tested earlier in the process of reviewing the regulations and not widely supported. The objective of the risk assessment pathway was not to account for every activity that involves clearance, but to identify those that pose an undefined level of risk that could reasonably be regulated (as opposed to being subject to a full clearance application under the Act).

A risk-based approach remains an option that can be further explored if broader reforms were to occur.

Part 3, Division 5, 14 s1(b)

Clearance for mining and petroleum activities

Remove reference to a management plan and replace with ‘Program for Environment Protection and Rehabilitation (PEPR)’.

No The Management Plan is not the PEPR but it is part of it and is required to be separated in the regulations.


Clearance for major developments and projects; mining and petroleum activities

No confidence that payment into the fund results in long-term gain in biodiversity, which needs to be ensured.

No The need for effective offsets is supported. The draft SEB Policy has been developed to improve effectiveness of offsets. The SEB Fund has always been one option in the SEB offset approach in SA, and there is no intention to change this. The fund allows for targeted investment into on-ground projects with a high probability of success.

Part 3, Division 5, s14 (2)

Clearance for mining and petroleum activities

Remove reference to the ‘owner of land’ in relation to making a payment into the Fund and replace with ‘the person undertaking the operations’ similar to the current regulation. The current wording suggests that the person who actually owns the land on which mining or petroleum activities are occurring is responsible for payment into the Fund, as opposed to the mining or petroleum company.

Yes N/a

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Part 3, Division 5 s15

Clearance for exploratory operations

Clearance for exploration is opposed, particularly when this occurs in areas where mining should never be allowed (e.g. Bunyeroo Gorge)

No This regulation has been in place since 1991. Provisions exist to seek SEB offsets for exploration impacts that are not readily rehabilitated. The regulatory responsibility for approving where exploration can occur sits with the Department of State Development under the relevant Mining Act.



15 (1) states ‘clearance of native vegetation for the purposes of exploratory operations of a kind specified in Schedule 1 Part 5 Division 2 permitted only if it is undertaken in accordance with relevant guidelines approved by the Councils under section 25 of the Act.’

In part This provision is intended to allow for the application of SEB requirements for exploration activities with significant impacts on native vegetation. To date the term significant has not been defined in this context. It is not intended to allow the NVC to refuse clearance for exploration. Therefore the capacity for DSD to approve exploration activities is not being challenged.



The requirement of an SEB for exploratory operations is not supported. The retention of the current exemption from SEB requirements for exploratory operations should be maintained. It recognizes the minimal impact of early exploration and the immediate rehabilitation of the land.

No See above. In most instances exploration is considered to be of low impact and the current exemption will continue to apply with no SEB imposed. Only in circumstances where clearance will have a significant and/or long term impacts will an SEB be required. This is intended to formalise in legislation an arrangement that already existing the Guidelines for a Native Vegetation Significant Environmental Benefit Policy for the clearance of native vegetation associated with the minerals and petroleum industry. To date this has not been defined, and any effort to do so would occur in consultation with DSD and industry.

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Part 3, Division 5

Risk assessment A range of general concerns about this approach, including lack of assessment, oversight (and particularly relating to Minor Clearance activity)

Refer to general responses in Part 3, and reference to minor clearance activity (p43).


Clearance for major developments and projects

The SEB requirements for developers should be focused on providing an on-ground benefit, a payment only when on-ground action cannot be taken.

The costs per hectare are too low and do not account for ecosystem services that those areas of native vegetation provide.

In part SEB requirements are being considered through a separate reform project. The SEB requirements, options and metrics have been recently reviewed with the new SEB Policy and Guide coming into effect during early 2017.

On-ground SEB’s are preferred by the NVC and only if the proponent cannot deliver this will a SEB payment be accepted.

Part3, Division 6, s20

Significant environmental benefit

There is far too much reliance on offsets in the current and proposed regulations. Science has shown repeatedly that in almost all situations offsets do not work – they should be a measure of last resort only. The SA Government needs to reverse its dependence on offsets as a matter of urgency.

No It is agreed that offsets should always be the option of last resort and the new regulations aim to establish greater emphasis on the mitigation hierarchy.

However, where appropriate the need for offsets is supported. The SEB policy and guide have been reviewed to improve effectiveness of the SEB offset system (see comments above).


Clearance for other activities

No confidence that payment into the Fund results in long-term gain in biodiversity, which needs to be ensured.

Concerns that this is not possible with reduction to NVC support staff.

No The need for effective offsets is supported. The SEB policy and guide have been reviewed to improve effectiveness of the SEB offset system (see comments above). There will also be an SEB register established to provide oversight and transparency.

There will also be a strong focus on proponent driven monitoring and reporting regarding the performance of the SEB. The NVC also has be ability to inspect SEB areas to ensure compliance. It is likely that in the further, NRM Boards will have greater participation in review and monitoring the effectiveness of SEB areas.

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Matters to be considered by Council

Remove reference to cost below (‘and cost’) and ‘Cost’ should not be a factor that the Council can consider. The cost of any alternative should not be a determining factor.

‘The Council may, when considering an application under this Part for approval to clear vegetation, take into account the practicability and cost of any reasonable alternative to the proposed clearance.’

No The reference to ‘cost’ has been a historical consideration particularly for infrastructure projects where ability to consider economic factors can be important when NVC are making decisions. No decision is made on ‘cost’ alone – environmental and social issues are always factored in.

This provision is also designed to ensure that the NVC does not seek to apply conditions or alternative options that are genuinely unreasonable from a cost perspective.

Division 6

S19

Matters to be considered by Council

Council “must take into account, and seek to further, the principles of clearance of native vegetation (insofar as they are relevant in particular circumstances:” Consideration of potential impacts on soil, water and other natural resources is potentially beyond the intent of the Council’s functions. To date DPTI has not considered these issues, and to do so would potentially be an additional burden.

No Under 14(2) of the Act the NVC must seek to further the Principles of Clearance of native vegetation. The NVC must seek to further the objects of the Act. Accordingly, such matters, when related to the clearance of native vegetation, are clearly within the responsibilities of NVC. However, to date the NVC has applied a pragmatic approach and not required detailed assessment against all principles, especially for relatively small clearance application. This situation is not expected to change.

Part 4, s24 SA Motorsport Park Unacceptable that this was placed where clearance was required in such an over-cleared state; process should be far more transparent; and

Concern with precedent set by this ‘special provision’ and what this will mean for future major developments. This treatment is not seen to be equitable or appropriate.

Comment This is a new provision relating to a particular development that was incorporated into the current regulations during the review period. This has been carried over into the new draft Regulations.

Part 6, s28 Service of notices Had experience when notice was not forwarded to the land owner.

No This has not been a commonly encountered problem for the NVC and not in need of change.

Part 6 s29

False or misleading information

Concern that the penalty has not been increased. No This is a new provision in the regulation. The amount that can be established as a fine is restricted by section 41(c)(2) of the Act to $10,000.

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Schedule 1, Part 1

Prescribed circumstances in which native vegetation may be cleared

Disappointment of non-inclusion of pipeline corridors in permitted clearance. The existing arrangement of buried pipelines being considered petroleum production activities (and incurring an SEB) is not appropriate.

The PaGE Act requires strict environmental controls through a Statement of Environmental Objectives to minimise impacts and are immediately rehabilitated.

Pipelines are constructed over months, not years across 20-25 metres and considered low risk, so should be treated as an exploration activity with no SEB requirement, or as permitted clearance (for construction of oil and gas pipelines).

No Permitting clearance for pipelines without conditions is not supported. This is not considered incidental clearance to a routine activity.

Pipelines require excavation and removal of vegetation and soil, and this level of disturbance may have longer-term impacts, especially in arid environments where vegetation recovery can be very slow.

The location of the pipeline, and the potential need for ongoing access/maintenance tracks, also influences the impact, and it is not reasonable to assume that the impacts are all minimal.

Schedule 1, Part 1, s1

Vegetation within 10 metres of existing building

Add another subclause

(2) Subclause (1) –

‘(c) Does not apply to new subdivisions’

Pending Proposed that all clearance required for new subdivisions will be addressed through a single provision, and provision of Significant Environmental Benefit offset will be based on the total clearance required. This will streamline dealing with new subdivisions because all native vegetation clearance issues would be addressed upfront through a single assessment and approval process, providing more clarity and certainty for developers, local councils and the purchasers of the new parcels of land (multiple exemptions will no longer apply).


Vegetation within 10m of building

Changes to definition of ‘buildings’ an example of weakening of existing activity

No The change to the definition of building is considered a tightening of the current situation, as the Development Act has a much broader definition of what a building is.

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Schedule 1, Part 1, s1 and Part 2, s17

Vegetation within 10 metres of existing building and Fire prevention and control

Vegetation within 10 metres of an existing building cannot be cleared if it is situated or growing on land within the River Murray Floodplain Area. A contradiction exists where for fire prevention and control, clearance can occur within 20 metres of a dwelling without restriction to the River Murray Floodplain Area.

Yes It is proposed to reinsert (from current 2003 Regulations) the restriction in relation to protecting Eucalyptus within 20 metres of a dwelling for fire prevention and control purposes. This is addressed in schedule 1, 17(1) fire prevention and control. This protection will extend beyond the River Murray Floodplain Area.

Schedule 1, Part 1, s2 (1)(b)

Maintenance of infrastructure

Include previously removed reference to standard operating procedures (SOPs). Addition of 2(3) ‘Subclause (1) applies to vegetation that is cleared in accordance with a standard operating procedure determined or approved by the Council for the purposes of this provision.’

Yes This will occur to continue clearance situations covered in current agency standard operating procedures.



As part of managing the whole of life of an asset SA water is required to decommission assets which may involve the clearance of vegetation. Query regarding whether decommissioning an asset should be defined more clearly in this regulation. Generally the clearance would be largely regrowth post original construction.

No Decommissioning an asset can be managed through an agency Standard Operating Procedure (SOP), or alternatively where the initial clearance envelope is not well defined (e.g. due to amount of time passed) clearance to decommission may need to go through a clearance application under the Act, if the vegetation has become significant and cannot be managed under a SOP.



Reference to vegetation that was previously cleared, and plants that have grown, or regrown, maybe difficult to assess and result in ambiguity; and

There may be circumstances where vegetation not originally cleared needs to be cleared to maintain infrastructure

In part There may be some ambiguity at times, but the revised regulation provides greater clarity regarding what is permitted clearance compared to the existing arrangements. Any ambiguity can be discussed with the NVC for determination.

The reintroduction of SOPs in relation to this matter will permit in some circumstances, for clearance beyond existing clearance envelopes. Alternatively, an application under Regulations relating to the provision of infrastructure could also address this situation.

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Schedule 1, Part 1, s6 (1) (d)

Safety of persons and property

Align arborist qualifications with section 117 Development Regulations 2008 to have Certificate V in Horticulture (Arbor culture), or a comparable or higher qualification.

Addition that the plant must be assessed to the satisfaction of the NVC.

Yes More definition is required as to arborist qualifications.

Mechanism for an arborist assessment and recommendation to be approved/oversighted by the NVC.

The new provisions provide greater clarity for requirements under the regulation. The current regulation is confusing in that it requires an arborist report to be produced, but has no instruction as to what needs to be done with the report.

Schedule 1, Part 1, s6 (1) (d)

Safety of persons and property

Possibility that vegetation less than 2m poses a risk. Is this intended to be dealt with Roadside Vegetation management?

Yes The roadside vegetation management plan will be updated to include approval capacity that is currently dealt with through Regulation 5(1)(lb). This includes provisions relating to clearance of both trees and shrubs.


Vehicle tracks Maintaining existing tracks is reasonable but new tracks should require inspection and approval (and surveys undertaken at appropriate times to detect orchids); and

New vehicle tracks should be assessed.

Yes

Yes

The provision will be changed to include notification ‘should’ be required as a first step towards increasing transparency of these clearance activities, and collecting data on amount of clearance occurring. The notification process (e.g. an online portal is under development) will also be used to encourage proponents to apply the mitigation hierarchy principles. (same will be applied to (11) new fences and (13) plant and animal control)


Vehicle tracks Clearance for vehicle tracks is highly subjective. What is defined as ‘reasonably required for access’? As a self-assessed activity, it is open to bias by the proponent determining what is ‘reasonably required.’

Suggest having a cap on vehicle tracks not exceeding 5 ha per year (as such in WA) otherwise it could be deemed ‘reasonable’ to have multiple tracks just tens of metres from each other.

In part There are very few known examples where anyone has attempted to use this provision in the way suggested.

It is not sensible to try to regulate for every possible situation, and this is likely to result in increased complexity and new ‘loopholes’ or unintended consequences.

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Vehicle tracks Add another subclause to 7 (3)

(3) Subclause (1) does not apply to–

‘(d) New subdivisions’



Vehicle tracks Proposed increase to 8m not justified Yes This was not incorporated into the final draft of Regulations


Walking tracks Clearance for walking trails should be capped; and

Once access made available more harmful activities can access trails (e.g. mountain bikes and horses), spreading weeds and providing access for feral animals. Skill required to site tracks to avoid these issues as much as possible; and

Concerns re trails be developed Anstey Hill – that they will be approved for bike use; and

Change self-assessed walking tracks to be applicable to private land only; and

Walking tracks for public use and recreational trails should be treated the same; and

Recommended that walking trails be in the risk assessment pathway, same as recreational trails

In part Walking tracks for public and/or commercial use will be assessed under the recreation tracks activity.

Walking tracks and other recreational tracks potentially have the same clearance impact. The most important issue is that planning and siting of new trails is carefully considered to minimise and avoid impacts.


Walking tracks Private land definition under this regulation will need to be defined as to include private commercial use as to not disadvantage other private-use walking tracks.

Yes The regulation for walking tracks currently does not distinguish between public use and private use. Private use is intended to cover very minor trails that only allow access by foot (i.e. a footpad) on private land and this will be clarified (the width will be reduced to 0.5m to make the intention clearer).

Tracks for commercial and/or general public use will be assessed as Recreation Tracks (see Schedule 1, Part 6, s36

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Cultural activities Definition of ‘Aboriginal person’ to be aligned with the definition in the Native Title (South Australia) Act 1994 and the Aboriginal Heritage Act 1988.

Concern that the current definition excludes people who do not affiliate themselves with a group; and then how is a group defined (formal or informal).

No In the regulation ‘Aboriginal person’ means a person of Aboriginal descent who is accepted as a member by a group in the community who claim Aboriginal descent. This is considered appropriate and other suggested definitions can be limiting.

Native Title (South Australia) Act 1994:

Aboriginal group—an Aboriginal group consists of all the persons who hold, or claim to hold, according to a particular body of traditional laws and customs, native title in a particular area of land and, if there is only one such person, that person constitutes the

group;

Aboriginal peoples means peoples of the Aboriginal race of Australia;

Aboriginal Heritage Act 1988:

traditional owner of an Aboriginal site or object means an Aboriginal person who, in accordance with Aboriginal tradition, has social, economic or spiritual affiliations with, and responsibilities for, the site or object.

Schedule 1, Part 1, activity 10

Fences Why does this only apply where a road reserve is in a council area? Why not out of council areas?

No No evidence to suggest that this is required.

Schedule 1, Part 1, s10 (1) (d) (ii)

Fences Addition of words ‘subject to local council approval’

Yes Local councils must approve any clearance on a roadside (e.g. to maintain fences on an adjoining property) in accordance with their NVC-approved Roadside Management Plan.

Schedule 1, Part 1, s10 (2) (a)

Fences Remove subclause (2) (a) ‘clearance of vegetation on a road reserve’

Yes Subclause (2) (a) is contradictory to 10 (1) (d) (ii).

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Fences Unnecessary clearance regularly observed along fences; new fences used to justify clearance (e.g. through large blocks of bush); and

New fences should be assessed

In part The provision will be changed to include notification ‘should’ be required as a first step towards increasing transparency of these clearance activities, and collecting data on amount of clearance occurring. The notification process (e.g. an online portal is under development) will also be used to encourage proponents to apply the mitigation hierarchy principles. (same will be applied to (11) new fences and (13) plant and animal control)

Schedule 1, Part 1, activity 10

Fences Add another subclause to 10 (2)

(2) Subclause (1) does not apply to–

‘(d) New subdivisions’


Schedule 1, Part 1, s12 (2)

Firewood Remove Heritage Agreement (HA) provision 12 (2) to not allow firewood collection on HA or Management Agreement (MA) land even if the terms of the HA or MA permit clearance for this purpose.

Yes Clearing for firewood (including dead trees) on a HA property allows for potential impact on hollows in a protected area.


Firewood ‘Subclause (1) applies to vegetation that is situated or is growing on land that is subject to a heritage agreement or a management agreement’

This activity could be required on heritage agreement or management agreement land.

No Standard heritage agreements prohibit native vegetation removal unless there are circumstances where the NVC and Minister are satisfied that the conservation of the land will not be adversely affected.


Firewood Need greater compliance of sale of firewood under this provision

No The regulation permitted clearance for firewood for use by the owner of the land on which the vegetation is growing for domestic purposes. The Native Vegetation Act permits the harvesting of vegetation (i.e. woodcutting or Broombush harvesting) for sale, but subject to conditions such as an SEB. If approval is not gained under the Act, compliance action can and has been taken.

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Firewood Reword 12(1)(b) from ‘the vegetation has a stem diameter at 300mm from the base of the plant of 200 mm or less’ to ‘the vegetation has a stem diameter of 200mm at 300mm from the base of the plant’ – as multi stemmed mallees regenerate more successfully from being cut as close to the ground as possible rather than up the stem.

No Will consider this definition for specific species in future.


Firewood This regulation should be removed as no-one would ever be able to police this

No The purpose of permitted activities (self-assessed) is that the responsibility is with the proponent for ensuring that the clearance activity meets the specific criteria of the regulation. Permitted activities are generally those which have minimal impact on the environment. Clearance for firewood is regulated by restrictions on the quantity and size that can be cleared for this purpose.


Firewood The regulation does not exclude Red gums (as previously restricted), so this species will be open to exploitation given its popularity for burning.

No The size restrictions relating to firewood clearance would prevent most Red gums, except very young ones, from being cut for firewood.


Plant and animal control Add the heritage agreement provision so that it applies to heritage agreement land.

‘Subclause (1) applies to vegetation that is situated or is growing on land that is subject to a heritage agreement or a management agreement’

Yes This activity could be required on heritage agreement or management agreement land.


Plant and animal control Concern that there is no requirement to specify/document the extent of the problem, and related details, and no requirement to comply with the Guidelines

Yes Will include mandatory consideration of the mitigation hierarchy, to be supported by DEWNR NR staff as required. The NVC’s section 25 Guidelines exist for this activity and will be inserted into permitted clearance, Part 3, Division 1, Section 7. The development of Guidelines is required for this particular regulation.


Plant and animal control Excluded from rail corridors; currently applies in these parcels. For consistency road and railway corridors should be treated the same

No All clearance on roadsides will be governed by Guidelines, which will include sections relating to pest control.

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Native vegetation causing management problems

Rename activity to make clearer ‘native vegetation causing associated management problems’

Yes Adds clarity.

The NVC’s section 25 guidelines exist for this activity and will be inserted into permitted clearance, Part 3, Division 1, Section 7.



Add the heritage agreement provision so that it applies to heritage agreement land.


Yes This activity could be required on heritage agreement or management agreement land.

Schedule 1 Part 1, s14


Requires more than self-assessment Yes Must be in compliance with section 25 Guidelines as per addition of this requirement in Part 3, Division 1, Section 7.


Taking of seeds and specimens

Add the heritage agreement provision so that it applies to heritage agreement land.


Yes This activity could be required on heritage agreement or management agreement land


Taking of seeds and specimens

Supports the need for this and argues that taking of whole plants is sometimes required (e.g. to remove orchids from development sites).

Sale of ‘rescued’ plants such as orchids should not be allowed. These plants should be used to propagate new specimens.

Yes Taking of whole plants is not permitted under this provision. Rather, removal of whole plants in relation rescue programs would likely be considered under Ecological restoration provisions and would require a management plan to outline how this outcome would be achieve.

Harvesting of whole plants for sale (e.g. Xanthorrhoea) would require a clearance application under the Act.

Collection of native plants for commercial use also requires a permit under the Wildlife Regulations.


Cultana training area Move the Cultana regulation to a general section rather than in the schedule of activities (as there is no approval or offset required).

No The requirements for this activity aligns with the other activities in the Part.

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Schedule 1, Part 1

Pipeline corridors Pipelines should be included in this Part as corridors are generally restricted to 20-25m and rehabilitated immediately.

No Even with immediate rehabilitation, it is expected that there could be long term impacts to the environment. However, the magnitude of the SEB required will give consideration the size of the clearance and time to rehabilitation. Therefore the SEB will be considerable less than if the clearance was large and permanent. This is in recognition of reduce impact of pipeline clearance.

Schedule 1, Part 2, Division 1, s 17(2)

Fire prevention and control

Clearance along fences that pass through native vegetation is not warranted; this should not be self-assessed

No Clearance along fences is permitted in order to maintain the fence (under Part 2), and this fuel reduction activity aligns with that exemption. However, notification will be requested for new fences (although not mandated), allowing the importance of the mitigation hierarchy to be reinforced to applicants.

Schedule 1, activity 17(1)


Add to 17 (1) – ‘(a) In a case involving the proposed clearance of trees with a circumference of 2m or more at 1 m above the ground – the CFS has given its approval to the clearance of vegetation.’

Add 17 (1) ‘(b) In this clause –

Country has the same meaning as in the Fire and Emergency Services Act 2005’

Yes Restriction required in relation to protecting Trees within 20 m of a dwelling for fire prevention and control purposes.

This will be a carryover from current 2003 regulations and will safeguard non-Murray protected trees for fire prevention and control purposes.

Schedule 1, activity 17(1)


Does this apply to establishment of a fuel break via clearance of vegetation along a fence line in a road or rail reserve?

In part It is not intended for this purpose and there is limited evidence that this has occurred under the current regulations. However, the potential for this to occur will be given consideration.

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Schedule 1, Part 2, Division 1, s 17(2)

Fences and Fire prevention and control (clearing around a fence to establish or maintain a fuel break)

Concerns regarding potential misuse of establishment or maintenance of a fence and clearance along a fenceline for a fuel break (also self-assessed but under CFS approvals pathway).

Instances of intact bush surrounded by cleared farming land, which have a property boundary bisecting them and have been cleared through the middle for the fence line. This type of clearance is unnecessary for fire management or fence repair and results in the loss of habitat and the introduction of weeds into the middle of undisturbed bush areas.

This clearance is legal under the Native Vegetation Act but landholders find it frustrating when they are keen to conserve bush but their neighbours clear a massive swathe through the middle of a patch that straddles the boundary.

In part Clearance for fencelines on boundaries through contiguous vegetation does occur at times, and is discouraged where possible (based on mitigation hierarchy this type of clearance can be avoided).

The fences provision (and several other permitted clearances) will be changed to encourage notification by applicants (i.e. notification ‘should’ be required). This is a step towards increasing transparency of these clearance activities by collecting data on amount of clearance occurring. The notification process (e.g. an online portal is under development) can also be used to encourage proponents to apply the mitigation hierarchy principles.

Requiring mandatory notification would be a significant change from current regulations and would require a substantial communications effort to be effective (to avoid potentially numerous compliance issues). Mandatory notification was also not consulted on, and will not be introduced.

Schedule 1, Part 2, s17(1)

Fire prevention and control-Clearance of vegetation situated or growing within 20 metres of a dwelling

Reference should be ‘clearance of vegetation situated or growing within 20 metres of a dwelling’

No ‘Dwelling’ is encompassed within the ‘building’ definition and is purposely referenced as a ‘dwelling’ as clearing vegetation for fire prevention and control is only permitted around a dwelling (which can be a building or part of a building) used as a self-contained residence so as to restrict clearance around a building that is not used as a residence.

Schedule 1, Part 2 s17s

Fire prevention and control – clearance within 20m of a dwelling

Clearing within 20m of buildings will remove all vegetation on small blocks. Similarly clearance along fences will lead to removal of critical habitat

In part Landholders are encouraged to only undertake clearance when absolutely necessary, and trees of a certain size (will be excluded from this provision (it is proposed to reinsert (from current 2003 Regulations) the restriction in relation to protecting larger trees within 20 metres of a dwelling for fire prevention and control purposes. This is addressed in schedule 1, 17(1) fire prevention and control).

34



Fire prevention and control – clearance within 20m of a dwelling

Some Councils are advising that all vegetation within 20m of a dwelling must be cleared, including within 20m off a neighbours dwelling; example of Councils withholding Development Approval until all significant trees removed; how can self-assessment work under these circumstances?

Yes The intent of the provision is to allow for fuel hazards to be removed, which does not necessitate the removal of all vegetation including all large trees. This is an issue that needs to be dealt with directly with the Council, and generally through improved information for the public/Councils.

Schedule 1, Part 2 s17

Fire prevention and control – establish or maintain a fuel break on an existing fenceline

KI Council has used this provision to inform landholders that they ‘must’ clear along their perimeters (using Sec 105F notices) to 10m, regardless of whether a fence exists. Needs checks and balances

Comment The intent of the provision is to allow for fuel hazards to be removed, which does not necessitate the removal of all vegetation including all large trees, or all boundaries/fencelines. NVC and DEWNR will continue to improve the availability of information to the public/Councils to clarify these types of issues.


Fire prevention and control – clearance in compliance with bushfire management plan

Prescribed burning – the 5% area target is causing harm in conservation zones; large trees, including trees with hollows are being lost. Too much burning is occurring away from assets and will achieve no tactical advantage.

Other risk treatment options are not well considered.

Environmental assets are not identified in the plans.

Is training for Fire Prevention Officers appropriate?

Comment Such matters need to be dealt with through the appropriate process, such as the development of BMAPs.

The regulations allow for prescribed burning to take place. However, the manner in which it occurs needs to be supported through Policy, procedures and appropriate scientific information. The NVC aims to work with the responsible agencies, such as DEWNR, Forestry SA, SA Water and CFS to ensure that this occurs.

Schedule 1, Part 2, s17 / Division 1 and Division 2

Fire prevention and control – clearance for the purposes of the Fire and Emergency Services Act 2005

No adequate review of this provision; and

Strongly supports NVC supervision and approval to ensure that appropriate expertise is used

Comment The NVC aims to work with agencies to ensure this powers are applied appropriately and clearance is minimised whenever possible.

The NVC and CFS have a strong working relationship to ensure powers are applied appropriately and clearance is minimised whenever possible.

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Schedule 1, Division ,s 18-21

Fire hazard reduction The fire regulations in general seem to be facilitating more and more clearance for fire safety and handing more power over to the SACFS, with little or no consultation required with the NVC.

Comment The safety of people will always be a priority. The NVC and CFS have a strong working relationship to ensure powers are applied appropriately and clearance is minimised whenever possible.


Management Plans: vegetation management – Roadside or rail corridor vegetation management

Define ‘road reserve.’

‘Road reserve’ is not defined in the Highways Act 1926, however it is accepted to be the area of land that is vested in the local council (or the Commissioner of Highways where there is no council) – typically the land between the edge of travelled way and the fence (or cadastral boundary). It is common for roads on Crown Land/Pastoral Lease land not to be fenced and for there to be no cadastral boundary delineating the area that constitutes the public road.

The APY Land Rights Act 1981 defines a ‘road reserve’ in section 33.

Note, definition will apply to other regulations.

No Clarity over the term ‘road reserve’ sufficient in Roadside Management Plan Guidelines and in DPTI Standard Operating Procedure.



Some very significant vegetation is present on these sites and must be protected

Yes The management planning process for roadsides is designed to protect high quality and significant vegetation, and has been designed in recognition of the important values on roadsides. However, where some clearance can be unavoidable where safety issues are paramount.



Will the DPTI Standard Operating Procedure need to become a vegetation management plan?

Many of DPTIs activities would fall out of the listed management plan activities (e.g. culvert maintenance). Why is the list restricted?

No Standard Operating Procedures will be reinserted into the regulations and DPTI would continue to operate under a SOP as per the existing arrangement.

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Remove 22 ( c) Do not support clearance for aesthetic improvements for roadside or railway corridors

Yes Providing aesthetic improvement of the reserve, corridor or crossing is not a purpose of the roadside or rail corridor vegetation management activity.

The term ‘aesthetic’ will be removed as it was not our intention to retain this.


Management plans: Maintenance of existing agriculture, forestry or farming

Clarity required over terminology that describes the activity, particularly definition of ‘existing use of the land’ – what constitutes a change of use; and ‘will not cause permanent degradation or loss of native vegetation’

No A range of NVC policies exist to provide guidance for these activities. Further clarity and interpretation of terms will be included in polices and information sheets etc. when they are updated to reflect the changes to the regulations.


Management Plans: Ecological restoration and management

Need more flexibility for management of vegetation and to test effects of disturbance to maintain diversity.

Yes Agree with this comment. This activity is designed to address this issue. Increasing intervention will be required to maintain the values of native vegetation, including species diversity.

Schedule 1, Part 3, s 24

Management Plans: Ecological restoration and management

The regulation for clearance for ecological purposes is open to interpretation and no requirement for any kind of justification, explanation, extent of clearance expected, species.

Specification for compliance with Guidelines is required.

No Compliance with NVC section 25 guidelines is specified in Part 3, Division 4, section 11(1)(b) for the vegetation management plan pathway. Management Plans need to be approved by NVC and clear objectives and evidence for management interventions are required.


Grazing of domestic stock

In addition to the self-assessed activity for ongoing grazing, any other form of grazing can occur (via a management plan) provided that permanent damage to the vegetation does not occur. Concern over this activity including the clearance of intact vegetation that has never been grazed and also heritage agreement land, as long as the vegetation is not seen to permanently degrade the vegetation, it can occur?

No Clearance for grazing of domestic stock at a manner, rate and/or species different to that of the previous 10 years is permissible provided the clearance is not permanent and able to be managed in accordance with a vegetation management plan.

Intact vegetation that has never been grazed will constitute a change in land use and will require to undergo a clearance application under the Act.

This regulation is not permitted on land subject to a heritage agreement or a management agreement.



Recommend that the Pastoral Board approve management plans, in order to provide a one-stop-shop on pastoral leases

No Management plans are currently referred to the Pastoral Board by the NVC for the Pastoral Board to provide comments. The Pastoral Board could approach the NVC to make a case for having a delegation.

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A guideline for management plans relating to changes in grazing due to the expansion of waterpoints is required

Yes These guidelines currently exist and will be migrated to the new regulations.



Propose rename to ‘Grazing of Stock’ rather than ‘Grazing of Domestic Stock’

No It’s unclear of the purpose of this change. However, it could facilitate the grazing of pest animals, such as feral goats. This is not the intent of this regulation.

Schedule 1, Part 4

Major projects Inadequate protection of vegetation under this process, in part due to inadequate funding to NVC

Comment The provisions for Major Projects have been in place since 1991, and no changes have been made to the current Regulations.

Schedule 1, Part 5, Division 1, s27 (1) and Division 2, s28 (1)

Mining and petroleum activities

Remove references to the Petroleum and Geothermal Energy Act 2000 in these clauses as the definition of ‘Mining Act’ includes the Petroleum and Geothermal Energy Act 2000.

No As per Part 3, division 5, 14 (1) (b) and (c) a ‘mining act’ and the Petroleum and Geothermal Energy Act 2000 have been separated due to the different requirements of a management plan (for operations authorised under a ‘Mining Act’) or a statement of environmental objectives (under the Petroleum and Geothermal Energy Act 2000).

Schedule 1, Part 5, Division 1-3, s27, s28 and s29


Heritage Agreements must not be explored, cleared or mined.

No The regulations do not prevent these activities from occurring. However, when they do occur within a protected area such as a Heritage Agreement, under the new SEB policy, a greater SEB offset is required.

Schedule 1, Part 5, Division 1-3, s27, s28 and s29


Inadequate public reporting under PEPRs and SOEs No The NVC is working with the Department of State Development to improve reporting of activities and SEB offsets approved under their delegation.


Other activities: Works on behalf of Commissioner of Highways

Include previously removed reference to standard operating procedures (SOPs). Addition of a subclause where it ‘applies to vegetation that is cleared in accordance with a standard operating procedure determined or approved by the Council for the purposes of this provision.’

Yes To continue clearance situations covered in current agency Standard Operating Procedures.

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Other activities: Works on behalf of the Commissioner of Highways

Concern re DPTI approach (e.g. excessive clearance of roadside trees after Sampson Flat fire, new Roundabout Humbug Scrub/Kersbrook Roads, regrowth clearance in cuttings).

Comment Such clearance activities generally require the approval of the NVC. Therefore there is NVC oversight in most instances.


Other activities: Works on behalf of Commissioner of Highways

A range of DPTI activities do not fall within the remit of the Commissioner of Highways.

No This regulation is not intended to cover all of the activities undertaken by DPTI. Other regulations, such as in relation to Infrastructure, are available where appropriate.


Other activities: New dwelling or building

Addition of a clause that the SEB has to be calculated at the subdivision stage by adding to schedule 1, 32 (2)(b) that subclause (1) does not apply to:

‘Subdivisions approved after the date of operation of the new regulations.

Pending The aim of the proposed change is to provide increased clarity over obligations for clearances on larger sites (i.e. total SEB offset determined upfront, including house sites).



Buildings still being approved in high fire risk situations resulting in excessive subsequent clearance.

Yes This issue is acknowledged, however, it is beyond the scope of the NV Regulations. The NV Act cannot override development planning decisions.



Concern regarding loss of reference to intact vegetation or protection over larger trees or the need to consider alternative locations for the dwelling to minimise impacts.

No The mitigation hierarchy must be considered up front with regulations that are risk-assessed in terms of finding the most appropriate location for clearance with the least impact on vegetation.

The presence of larger trees and patches of vegetation will escalate the level of risk attributed to the clearance proposal, allowing a greater SEB to be generated.

Schedule 1, activity 33

Other activities: Infrastructure

Include previously removed reference to standard operating procedures (SOPs). Addition of a subclause where it ‘applies to vegetation that is cleared in accordance with a standard operating procedure determined or approved by the Council for the purposes of this provision.’

Yes To continue clearance situations covered in current agency Standard Operating Procedures.

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Schedule 1, activity 33


Concern that the requirement to minimize clearance and demonstrate that there is no other practicable alternative requiring less clearance (and that alternatives have been considered) has been omitted.

No All clearance activities are subject to the mitigation hierarchy and through the risk assessment there is increased oversight and ability to influence decisions (which also potentially decreases SEB requirements for proponents).



Not enough effort placed on avoiding poorly placed infrastructure

In part Greater emphasis on the application of the mitigation hierarchy may assist, however, decisions regarding siting of infrastructure are made based on many factors, which are beyond the scope of the NV Regulations. Also the NV Act cannot override development planning decisions.


Other activities: Residential subdivisions

Imperative that SEB be applied commensurate to the scale of clearance with residential subdivisions (as above).

Pending All clearance required for new subdivisions will be addressed through a single provision, and provision of Significant Environmental Benefit offset will be based on the total clearance required. This will streamline dealing with new subdivisions because all native vegetation related issues would be addressed upfront through a single assessment and approval process, providing more clarity and certainty for developers, local councils and the purchasers of the new parcels of land (multiple exemptions will no longer apply).



Council should not approve subdivisions in high risk areas, thereby allowing CFS to approve clearance of vegetation to reduce fire hazard

No This issue is acknowledged, however, it is beyond the scope of the Regulations. The Act cannot override development planning decisions.



Need to be approved by NVC, who should have power to make a difference.

No This is beyond the scope of the Regulations. The Act cannot override development planning decisions.

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Other activities: Residential subdivision

Concern that once a subdivision has been approved, it is too late to undertake a risk assessment. Risk assessment needs to be undertaken prior to the subdivision application, and assessed with the development application so the relevant information has been included in the assessment up front, and can influence the design and site management. This should be a requirement where native vegetation is present.

In part The risk assessment is used to determine the assessment method for the SEB calculations for certain activities defined in Part 6 of Schedule 1.

DEWNR is proposing to amend the Regulations to ensure that new subdivisions are not cleared in a piecemeal way using permitted clearance activities listing in Schedule 1 Part 1. This is not how the Regulations are intended to operate.


Other activities: Clearance of regrowth greater than 5 years of age

Remove this activity to improve clarity with the other activities that deal with vegetation regrowth.

Yes There are two other regulations that deal with regrowth (11 – clearance of regrowth within the last 5 years and 23 – Maintenance of existing agriculture, forestry or farming that requires a management plan to manage the regrowth). This regulation which is subject to the risk assessment creates confusion with the other options for regrowth. Regrowth greater than 5 years of age should be assessed against the NV Act through a full clearance application, rather than under a regulation.


Other activities: Clearance of regrowth greater than 5 years of age

Requires an end date that should not be longer than 8 years

No As above this activity will be removed. Any clearance greater than 5 years of age or regrowth which cannot be managed or is permanently cleared, will be subject to a clearance application under the NV Act.


Other activities: Recreation tracks

Define recreation track as being for non-motorised vehicles.

Yes Agree



Mountain bike tracks through intact bush pose a threat to wildlife and walkers, and increase erosion; and

No vegetation should be cleared for mountain bike tracks (enough fire tracks exist); and

No limits to where tracks go (e.g. avoid high quality vegetation) and limits to widths and surfaces; and

Essential that it is checked by NVC

In part The application of the mitigation hierarchy is required as part of a site assessment, so there is scope to influence where tracks are placed etc.

Well planned mountain bike tracks should not have any more impact on wildlife and vegetation, or lead to more erosion, than other tracks.

The experiences sought by mountain bike riders is not met by fire tracks.

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Recreation tracks require a risk assessment approach to clearance whereas walking trails require no assessment of risk. When a walking trail is exactly the same as a recreation trail albeit purportedly for different users, the assessment of risk and approval authority associated with the construction and implementation of the trail should be exactly the same. A recreation track should be treated the same as for a walking track.

Yes As per changes to walking tracks. Walking tracks (self-assessed) will apply for private use only, public use walking tracks will be undertaken as recreation tracks.


Other activities: Recreation track

Concern that no size limit and no limit to the quality of vegetation that can be cleared, and no requirement to choose the path of least impact.

No Recreation tracks have been included as a risk-assessed activity due to the undefined level of risk associated with clearance for a recreation track. Through addressing the mitigation hierarchy, the path of least impact can be determined.


Other activities: Recreation track

Remove recreation tracks applying to heritage agreement or management agreement land.

Yes Recreation tracks are not reasonably required on heritage agreement or management agreement land.


Other activities: Commercial vehicle access track exceeding 5m

Remove the activity for commercial vehicle access on heritage agreement/management agreement land.


Yes Commercial vehicle access tracks are not reasonably required on heritage agreement or management agreement land.



An example of ‘too many exemptions’ and not enough oversight.

No All activities in the Risk Assessment pathway are assessed under the NVC.



‘Commercial vehicle’ requires clarity. No Supporting information will clarify, and details not require din the regulations.

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Other activities: New dam and expansion of dam

Concern regarding provisions for new dams and expansion of dams restricted to only pastoral land.

No New dams and expansion of dams are restricted to pastoral land and will be risk-assessed. New dams and expansion of dams on agricultural land will be subject to a clearance application under the Act.



An example of ‘too many exemptions’ and not enough oversight

No All activities in the Risk Assessment pathway are assessed by the NVC.



It would seem that dams get particular reference but other similar activities undertaken for water access are not included. Should there be a broader definition?

What is a dam? Other water affecting activities also impact on native vegetation.

No This has not been an issue in relation to existing regulations.


Other activities: Minor Clearance

Remove activity for minor clearance; and

This is flawed as the conservation significance of very small patches is very high in over-cleared landscapes, and often contain threatened species or communities; and

This provision should not remain; and

How can value be assessed if site not assessed? Sites such as Bushcare sites return to good condition after years of careful reclamation; and

Minor clearance activity is very open to exploitation. We do not need a wildcard regulation with no parameters for numbers of trees or areas of vegetation that might constitute ‘minor clearance’

Yes The evidence suggested that the inclusion of this activity would not result in different outcomes, rather it provided an alternative path for assessments. However, DEWNR recognised that there was some risk with unintended consequences relating to the inclusion of this activity and therefore on balance we support the concerns of the conservation NGO’s and will remove this activity.


Other activities: Minor clearance

Why does this not apply to vegetation on a road reserve, rail corridor, or rail reserve? Much of DPTIs work would be minor.

No This regulation will be removed.

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Other activities: Minor clearance

Proposed definitions of trees under minor clearance are not practical. Number and circumference of trees in agricultural zone needs more work. Also, in the pastoral zone the majority of vegetation consists of shrubs, so referring to trees seems at odd with this.

No This regulation will be removed.

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Part 3: Response to general issues raised

Through the formal consultation process it became apparent that people gained a much greater awareness

of the details of the Regulations and this raised a range of issues for people, particularly in the conservation

sector (addressed in Part 2 of this report). Many of the concerns raised were outside the scope of the

review of the Regulations, but reflect broader issues that deserve a response and/or clarification.

This section addresses the general concerns or issues that were raised in the more detailed submissions,

including the comments on YourSAy.

Clarifying the Aim of the Review of the Regulations:

The stated aim of the routine 10 year review of the Native Vegetation Regulations 2003 was to reduce the

complexity of the Regulations by clarifying the details of assessment and approval processes and the

prescribed clearance activities. Despite some comments to the contrary, the approach taken to achieve

simplification/streamlining (including establishing four assessment pathways) was not aimed at reducing

clearance controls, and was not driven by resource considerations. The simplification achieved is

considered a good outcome for regulatory reform in general.

The restructuring of the Regulations does not reflect a change in the Government’s position in relation to

the Act and its objectives. As stated, the changes have been made with the intent to make the assessment

and approval requirements more transparent. Overall, the intent of the regulations has not been

substantially modified, but some specific changes have been made to improve the regulations (e.g.

inclusion of the risk assessment pathway and tweaks to clarify activity criteria). There is now increased

clarity for all parties on each of the regulations in terms of definitions on what can or cannot be cleared.

These changes have not been made with intent to reduce clearance controls.

The NVMU is well aware of a number of systemic issues raised that potentially generate inequity and/or

have led to inconsistencies in the application of the Regulations. This review and updates to policies and

procedures will address some of these problems.

The focus should be on achieving the primary objects of the Native Vegetation Act 1991, and

applying the Principles of Clearance:

As prescribed in the Native Vegetation Act 1991, the purpose of the Regulations is to allow for a range of

circumstances where clearance of native vegetation is permitted, outside of the clearance controls of the

Act.

Over the last decade the Regulations have evolved in a way that has led to an unreasonable level of

complexity, and this is recognised by all interested parties. In the current Regulations, each prescribed

activity has criteria that defines the activity itself, and specific detail on the approval/assessment processes.

The draft Regulations group activities into just four assessment/approval pathways according to common

assessment and approval requirements. This approach was generally supported, although the introduction

of a risk assessment pathway received mixed comments (see below).

The clearance controls of the Act include the Principles of Clearance (Schedule 1) and the criteria for intact

stratum (section 3A). Clearance under the Regulations are excluded from this criteria but must

demonstrate how the mitigation principles have been considered (demonstrating avoidance) as well as the

technical requirements of the regulation. Concern has been raised that clearances assessed under the

regulations are not subject to being assessed against all of the Principles of Clearance of the Act. The draft

Regulations place more emphasis on a subset of specific Principles of Clearance particularly related to

conserving biodiversity (explicitly stated in the risk assessment methodology). Based on the comments

received on this, consideration will be given to applying more of the Principles. The mitigation hierarchy

will also be applied upfront to all applications. This will be addressed in related policy and procedures.

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Context for the vegetation clearance laws:

Many submissions from the conservation sector sought to ensure that the context for clearing laws in

South Australia, whilst progressive for the times, is not forgotten. It is acknowledged that by the time the

laws came into effect the vast majority of arable land in South Australia had already been cleared. Within

this context it is also important to acknowledge that the laws did lead to cessation of further broadacre

clearance, and the Heritage Agreement scheme has resulted in an area almost equivalent to the national

parks and reserve system being protected in perpetuity (in the agricultural zone). In contrast, substantial

clearance is still occurring in some states, despite knowledge of impacts on biodiversity, ecosystem

services, and the loss of carbon into the atmosphere that results.

DEWNR and the NVC does consider the landscape and ecosystem context for clearance applications, and

the level of clearance in a region has always factored into decision-making.

A vision is required for native vegetation:

In the context of concerns with the directions of the Regulations, some comments were received that

advocated for the development of a broader vision for native vegetation for the future. This suggestion was

made in the context of the importance of native vegetation to the wellbeing of people and landscapes.

DEWNR champions the value of native vegetation in our communities and landscapes. DEWNR and the

NVC is investing in opportunities for innovating, including new mechanisms for stewardship and also

carbon sequestration, to improve the management and protection of native vegetation in SA.

Increase emphasis on mitigation hierarchy is required:

The mitigation hierarchy encourages proponents to consider all options for avoiding or minimising

clearance, thereby reducing the impact, but also reducing their SEB offset obligation. DEWNR emphasises

that this approach is fundamental to any system that approves offsets (i.e. the concept of offsets was

introduced into environmental management as a last resort, once avoidance, minimisation and mitigation

has been undertaken; refer to draft SEB Policy 2016). DEWNR also emphasises the importance of

additionality of offsets to ensure ‘no net loss’. These principles are detailed in the SEB policy that is

currently being finalised.

The mitigation hierarchy has been inserted upfront as a guiding principle in the Regulations and will be

applied to all clearance applications, regardless of the approval/assessment process. The wording of this

regulation will be strengthened to clarify the intent. However, we acknowledge that this is difficult to

oversee/enforce in all situations.

DEWNR is designing an online customer portal (as part of the native vegetation business reforms) for all

clearance applications, and the mitigation hierarchy will be built into this upfront. New information and

guidance will be developed to help proponents to understand and apply their obligations related to the

mitigation hierarchy. DEWNR staff will have an important role in helping to ensure that the hierarchy is

adequately applied.

The new approval pathways:

Explicit comments regarding the structure of the new Regulations were generally supportive, or at least

acknowledged the problems with the complexity of the current Regulations, and need for improvements.

The new pathways highlight where approvals, assessments and SEB offsets are required. The checks and

balances of the current system were transferred into the new pathway structure. Currently, the approval

requirements, SEB offset requirements and specific compliance requirements of the activity were described

in the Regulation for each permitted activity. The approval details have been shifted out of the individual

activity descriptions and outlined up front to make it easier for proponents to identify their obligations (i.e.

the pathway - whether self-assessed, requires CFS approval, an NVC-approved management plan or

subject to the risk assessment).

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As a result of making the approval pathways more transparent it has highlighted areas where the NVC

approval and/or the SEB offsets are not required. Current governance arrangements (e.g. relative roles of

other agencies and NVC) have remained unchanged and have been transitioned over to the new

regulations. In some instances, the NVC has gained additional ability to require SEB offsets. The NVC will

maintain approval authority for all management plans, and activities listed under the risk assessment

pathway (in some instances this occurs indirectly via delegations or under detailed Guidelines and Standard

Operating Procedures). In future all proponents will need to enter details relating to applications,

assessments, approvals and SEB offsets via the online portal, ensuring increased accountability and ability

to undertake audits.

The draft Regulations should be understood in association with the other native vegetation business

reforms. There will be capacity for staff within Natural Resources SA to contribute their local expertise, and

more localised decision making relating to some clearance applications, which was supported in several

submissions. However, some comments also noted that this is a double-edged sword - use of local staff

expertise in decision-making is considered a good thing in general, but it also raises potential conflicts of

having dual roles (i.e. providing incentives for vegetation restoration and management, and also approving

some clearance applications). Training of staff involved will be thorough to manage this situation.

Permitted activities - ‘self-assessment’ pathway:

The activities within the self-assessment pathway have not changed substantially, and the lack of approval

requirements for activities listed under the ‘self-assessment’ pathway remained unchanged. However,

introducing a new term (i.e. ‘self-assessment’), which accurately describes the current process, generated a

lot of concern from the conservation sector. Other stakeholders generally understood and approve of these

provisions.

Many of the activities within the self-assessment pathway were introduced with the first regulations and

were intended to address the routine requirements for minor clearance for farm management. No approval

or SEB offset has ever been required. DEWNR and the NVC are not seeking to change this situation and

introduce a requirement for SEB offsets for these activities.

One of the concerns raised with this pathway is that the requirements do not include any form of

notification so monitoring the level of clearance occurring for each activity, and compliance, is not possible.

This does make it impossible to adequately review the effectiveness and impacts of these parts of the

Regulations. Also, the type of vegetation cleared for these activities is not considered, so threatened

species and communities could be cleared. This does represent one of the largest inconsistencies within the

Regulations. To address these concerns in part, DEWNR will include in the new Regulations a provision to

facilitate/encourage notification, and steps to ensure that the mitigation hierarchy has been adequately

applied (to new fences, new vehicle tracks, clearance for pest and plant control, and plants causing

management problems). This is made possible with limited imposition through the new online portal that is

being developed, which would then inform DEWNR of the level and type of clearance occurring under

these activities, and provide proponents with ‘proof’ of approval. DEWNR and the NVC will also be

investigating options for reducing clearance of threatened species/communities under this pathway, given

that the focus of controls in other pathways is to limit impacts on these particular values.

Encouraging proponents to notify of clearance occurring under the self-assessment pathway will require a

considerable communication effort to educate them of the change, and therefore mandating notification at

this stage was not considered sensible due to the compliance issues it would create.

One of the major problems identified with the self-assessment pathway is the ability of proponents to

‘bundle’ activities and undertake clearance without an SEB offset being required. In particular, this has been

applied to new subdivisions and has resulted in large areas of intact vegetation, or threatened

communities, being cleared in some situations with minimal SEB offsets being required. This is not the

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intent of the ‘self-assessed’ activities, which were originally introduced to facilitate routine and ongoing

farming operations. DEWNR is exploring the option of excluding some activities from being available to

new subdivisions. Where clearance is required for new subdivisions the total area of all clearance required

(for tracks, fences, infrastructure, fire breaks etc) could be considered upfront through a single provision,

with the mitigation hierarchy being applied at this time. Additionally, it is much more efficient to require an

SEB offset for the total area cleared upfront, as opposed to the purchasers of individual blocks being

required to pay for an SEB for the residual vegetation remaining on the blocks. The benefit to proponents

of subdivisions is that they achieve certainty upfront regarding SEB requirements through a single

provision, the system operates equitably, and the land parcels can be sold on the basis that the purchaser

has no further obligations relating to vegetation clearance/offsets.

Finally, for all circumstances where a desktop and site assessment is required there is no expectation that

proponents themselves will be required to identify threatened species or communities, or other biodiversity

values. Assessments are only undertaken by DEWNR staff or accredited consultants. DEWNR staff can also

provide advice to any application under the self-assessment pathway, and this regularly occurs now. When

a proponent makes contact with DEWNR it also provides staff with the opportunity to assist with applying

the mitigation hierarchy.

Concern with the fire hazard reduction (CFS approvals) pathway:

DEWNR/NVC and CFS have an existing arrangement to work together to protect life and property, while

still recognising the value of native vegetation. The government has prioritised the protection of life and

property via fuel management activities and does not wish to place a disincentive on fuel hazard reduction,

particularly around properties. The operation of CFS approvals have not changed from the current

regulations. Under the arrangement, the NVC is notified of clearances for annual reporting purposes.

There were a range of concerns raised about misinformation and the misuse of this pathway. DEWNR

acknowledges the need to continually update fire management policies based on best available evidence

(e.g. note the changes in Victoria to the blanket fuel reduction target of 5% annually of public land) and to

communicate the requirements of the regulations to Councils and the public. The number of clearances

occurring under this pathway that require formal reporting to NVC are in fact minimal, however, there are a

few examples where clearance has been considered unreasonable or excessive and DEWNR is working

towards better outcomes in these situations.

NVC/DEWNR undertake accreditation training sessions with the CFS Regional Prevention Officer’s on

managing native vegetation to reduce the impact of bushfire; ecological and prescribed burning; and

carrying out vegetation assessments. CFS Officers follow agreed processes with ongoing support from

NVC.

DEWNR will continue to work towards ensuring that the best available information on native vegetation

and other biodiversity values is used to inform zoning and priorities within bushfire plans (Both CFS and

DEWNR plans). Process improvements to increase NVC oversight of some fire hazard reduction clearances

may be considered in the future if considered a priority.

New risk assessment pathway:

This new part of the Regulations received a lot of comment, and mixed views. Most submissions agreed

that more information on the details is required to fully understand this approach. It was also noted in

several submissions that this type of risk assessment process is an accepted approach and is widely applied

to natural resource management issues.

The risk assessment pathway was developed as the process for assessing applications that pose an

undefined level of risk of impacts (e.g. new activities such as infrastructure development, dams,

subdivisions).

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The objective of the risk assessment is to ensure that approval processes are consistent with the objectives

of the Act, defensible, transparent and at a level commensurate with the level of risk posed by the

clearance. Ultimately the purpose of the risk assessment is to determine the level of assessment process

required to ensure an adequate SEB offset is calculated, reflecting the values of the site.

The risk assessment method and criteria to assess it is being developed using available evidence, including

past applications.

Risk-assessed activities are not self-assessed by a proponent, which was a common misunderstanding. All

activities subject to the risk assessment pathway are assessed by staff or accredited consultants and

approved by the NVC. As proposed in the Options Report in early 2015, there will be no reliance on maps

of vegetation significance. All assessments will use a site assessment and expert ecological knowledge.

The risk assessment pathway will be retained, with some modifications to the activities listed within it, as

outlined in Part 2.

Minor clearance activity:

The introduction of the activity for minor clearance in the risk assessment pathway raised considerable

concern in the conservation sector. Other stakeholders recognised that this was an attempt to simplify the

current approval process for very small patches of vegetation (which are currently approved for clearance,

although through multiple different pathways in the Regulations).

In practice, there are few clearance proposals that would rely this activity, as most meet the requirements

for one of the other prescribed activities in the Regulations (reflecting a broader concern raised by

conservation sector about the extent of activities in the Regulations). The available evidence from previous

clearance applications of minor clearance (defined as areas less than 300m2) indicated that specific values

such as threatened species were not being encountered in such small areas of vegetation. However, many

of the concerns raised were legitimate, such as: the potentially high value of small patches of habitat and

paddock trees in heavily cleared ecosystems; the issue of incremental loss of critical habitat such as trees

with hollows; and the general issue of the timing of surveys and ability to even detect threatened species.

There was also a strong concern that this would lead to increased levels of clearance of vegetation. DEWNR

acknowledged that this was a potential unintended consequence, and undesirable. As a result the minor

clearance activity will be removed.

Cumulative impacts need greater consideration:

Dealing with cumulative impacts (i.e. ‘death by 1,000 cuts’) is a real problem for protection of the

biodiversity. Naturally proponents can dismiss the impacts of their individual activities as minor, but over

time small clearances can lead to a major impact. Therefore, cumulative impacts are an issue that requires

further consideration as it is very challenging to sensibly address the issue with the information we have

available on the value of individual patches or trees, and in an equitable manner.

Cumulative impacts are specifically addressed in the risk assessment by considering all applications from

the previous five years on a single property. The impact is determined from the cumulative area or number

of trees approved for clearance combined with any current application. The limitations of this are

acknowledged, however, this approach was recognised as a step in the right direction. Consideration of

how this applies to public landowners, such as local government, or in situations where the ownership

extends over vast areas (such as extensive linear road networks) is being undertaken. The intent is to limit

incremental losses within a local area, however, it is acknowledged that a sound basis for measuring the

cumulative impacts of clearance at the landscape scale currently does not exist.

As indicated above, DEWNR and the NVC acknowledge that small patches of vegetation, and trees, can

have substantial value. The draft Regulations are not based on an assumption that these patches and trees

are of no value, or that clearing them is of little consequence. On the contrary, assessment processes place

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a strong emphasis on identifying all the values of the vegetation, and particularly threatened species and

communities and critical habitat for threatened species.

Interaction with land use planning (development planning):

Increased peri-urban and rural living zones and the intensification of primary production uses does often

lead to impacts on native vegetation. In this context, the Act and the Regulations provide a level of

protection, however, the interactions with the Development Act 1993 were raised by the conservation sector

as problematic, and a range of loopholes were cited. DEWNR and the NVC acknowledges the challenges in

this respect, and for example is investigating options for improving how new subdivisions are treated in the

Regulations.

The review of the 30 Year Plan for Greater Adelaide, and the implementation of the new planning

legislation, provides an opportunity for native vegetation protections upfront in the new planning

framework. DEWNR will be seeking to ensure that appropriate information is inserted upfront in the

proposed new e-planning system through code(s) and overlay(s) that highlight conservation/biodiversity

values.

Timing of assessments and detectability of species:

Detectability of species, particularly threatened species, during any environmental impact type assessment

is widely acknowledged as problematic, and was raised in several submissions. For example, we know

orchids are only visible seasonally, and much of our wildlife - particularly birds – are mobile in space and

time, and therefore relatively rapid site assessments will not detect all potential biodiversity values at a site.

This issue is considered in the design of assessment techniques but is not related directly to the

Regulations. There are currently no standards for ensuring adequate survey effort to address detectability

issues in impact assessments in SA. Currently staff and accredited consultants rely on their expertise to

recognise and address this is as far as practicable.

Provisions relating to Heritage Agreements:

Throughout the draft Regulations, Heritage Agreements are included or excluded from the various

regulated activities. Concerns were raised about certain provisions applying to Heritage Agreements and as

a result some amendments have been made (outlined in Part 2).

Tailem Bend Motorsports Park:

Several submissions raised concerns relating to the provisions for the Motorsports Park at Tailem Bend.

These provisions were gazetted into the current Regulations earlier in 2016 and were developed in a

separate process to the review of the Regulations. This provision has simply been carried over into the new

Regulations.

General concerns:

One submission raised general concerns relating to the relevance and need for any legislative protections

for native vegetation.

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Part 4: Next Steps

Finalising the Regulations (including consulting further on some proposed changes) is expected to take

until the end of 2016. This will enable the draft Regulations to take effect by mid-2017, see Figure 1 below.

During this time, the native vegetation Significant Environmental Benefit (SEB) and the Business Reforms

(Appendix 3) will also be progressing in line with the Regulations Review with a complete package of

updated policies and tools being available to support native vegetation management in 2017.

Figure 1. Native Vegetation Regulation Review process

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Appendix 1: YourSAY Facebook summary + posts

comment captures

In addition to the infographic report provided, please find some more text and the comments

from the public on Facebook posts published on the YourSAy Facebook page

Facebook posts 3

Reach *the total number of people who saw the post(s).

2,525

Likes 11

Dislikes 1

Comments *images attached below – note: comments shared on private accounts cannot be sourced.

7

Shares 6

Post clicks 88

Facebook engagement *the total amount of interactions that occurred on the posts (likes, comments, shares and clicks) divided by the number of people the post(s) reached.

4.48%

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Appendix 2: Results to YourSAy questionnaire

Notes:

30 responses in total. Not all questions were answered in all responses.

The responses can be interpreted in the context of the relative placement of the respondents (first graph)

Placement of respondents on conservation-development

continuum

4. Do you think the regulations make it too easy to clear

native vegetation?

1. Do you think the Native Vegetation Regulations 2016

balance the protection of our native vegetation with

facilitating reasonable clearance for everyday activities?

6. Do you think there is enough regulation around the

ongoing management of native vegetation?

2. Do you think the regulations have reduced ‘red-tape’ and

administration for approvals?

7. Do you think the new regulation for ‘minor clearance’

in Pathway 4 is a sensible approach?

3. Could the regulations further reduce ‘red-tape’ for specific

activities to clear native vegetation while still providing

protection to biodiversity?

8. Do you understand where offsets (SEBs) are required

in the new pathway structure of the regulations?

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Appendix 3: Summary of Native Vegetation Reforms

Review of Native Vegetation Regulations 2003

Why we are doing the reform and what is it aiming to achieve?

The Native Vegetation Regulations outline a range of circumstances where clearance of native

vegetation is permitted, outside of the clearance controls of the Native Vegetation Act 1991.

This reform is part of a routine 10 year review process with the aim to simplify the current regulations

to make them much easier to interpret and therefore more transparent to everyone.

What stage are we up to?

Public consultation on the draft Native Vegetation Regulations 2016 and the Guide to the draft Native

Vegetation Regulations 2016 concluded on 15 August 2016. DEWNR has received 66 responses

through surveys and formal submissions.

Following consideration of the submissions and changes proposed to the draft regulations, the NVC

will be asked to endorse the changes and have the regulations finalized.

It is anticipated that the revised Regulations will come into effect in mid-2017.

What our stakeholders are saying and our challenges?

The conservation sector would like more controls over clearance.

Agency stakeholders are generally comfortable with the increase in transparency of the proposed

clearance regulations.

Our challenge is to clearly communicate how the regulations will work and how to implement them in

an operational sense within each Region while maintaining state-wide consistency.

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Significant Environmental Benefit (SEB) Policy and Guidelines

Why we are doing them and what they’re aiming to achieve?

Under the Act and Regulations, when clearance cannot be avoided, certain activities need to be offset

through the establishment of an SEB to provide an environmental gain over and above the impacts of

an approved clearance.

These reforms will embed internationally recognised best practice principles for environmental offsets

into our SEB policy.

The reform provides new metrics to enable proponents to measure impacts on native vegetation and

determine associated costs of providing SEBs.

The reforms also allow third parties (individuals or entities) to work directly with companies that are

clearing native vegetation to provide the required SEB. This creates a new market for environmental

conservation.

What stage we’re up to?

The Native Vegetation (Credit for Environmental Benefits) Regulations came into operation during

December 2015.

The NVC’s draft SEB Policy and Guide were released for public comment from December 2015 to

February 2016.

The NVC has supported the proposed changes to the SEB Policy and Guide subject to further

consultation with stakeholders.

The planned operational date of the new SEB Policy and Guide will be early 2017.


The Native Vegetation (Credit for Environmental Benefits) Regulations 2015 and SEB Policy has been

developed over a two year period with a high level stakeholder group.

This group assisted with the coordination and provided the authorizing environment for the

regulation and underlying policy.

Our challenge is to clearly communicate how the regulations and policy will work and how to

implement them in an operational sense within each Region while maintaining state-wide consistency.

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Business Transition to Regions

Why we are doing them and what they’re aiming to achieve?

Reform of how native vegetation management is conducted within South Australia was investigated as part of wider DEWNR structural changes and budget savings measures during 2014.

These reforms will improve localised decision making, and integrate native vegetation into operational delivery of NRM programs

What stage we’re up to?

Stage 1 concluded in 2015 which established each NRM Region as the primary native vegetation contact for the community

Stage 2 is occurring in 2016 with each Region dedicating DEWNR Staff to be authorised under the Native Vegetation Act to assist in investigation and compliance.

Stage 3 occurs in 2017 with the delivery of the operational aspects of administering clearance applications and assisting with SEB offsets. This stage will also see the finalization of the online customer portal for proponents and operational guidelines for Regional staff.


Concern over increased Regional costs through administration of the Native Vegetation Act 1991.

Our challenge is to ensure the interpretation of the Act will be consistent across eight Regions.

response to consultation on the draft native vegetation...

Documents