Native Vegetation Act 1991

This

Act may be cited as the Native

Vegetation Act 1991.

In this Act, unless the contrary intention appears—

Adelaide

Dolphin Sanctuary has the same meaning as in the Adelaide

Dolphin Sanctuary Act 2005;

biological diversity or biodiversity means the variety of life forms represented by plants, animals and other organisms and micro-organisms, the genes that they contain, and the ecosystems and ecosystem processes of which they form a

part;

breach of this Act means a contravention of, or a failure to comply with, a provision of this Act and includes a contravention of, or a failure to comply with, a term of a heritage agreement;

building includes a structure that is fixed to land;

to clear native vegetation includes to cause or permit the clearance of native vegetation;

clearance, in relation to native vegetation, means—

the killing or destruction of native vegetation;

the removal of native vegetation;

the severing of branches, limbs, stems or trunks of native vegetation;

the burning of native vegetation;

any other substantial damage to native vegetation, and includes the draining or flooding of land, or any other act or activity, that causes the killing or destruction of native vegetation, the severing of branches, limbs, stems or trunks of native vegetation or any other substantial damage to native vegetation;

the

Council means the Native Vegetation Council established by this Act;

ERD

Court means the Environment, Resources and Development Court;

the

Fund means the Native Vegetation Fund established by this Act;

isolated plant—see subsections (2) and (3);

land includes—

land submerged by water; and

an interest in land;

landscape management region means a landscape management region established under the Landscape

South Australia Act 2019;

local council means a municipal or district council;

member means a member of the Council;

Minister for the Adelaide Dolphin Sanctuary means the Minister to whom the administration of the Adelaide

Dolphin Sanctuary Act 2005 is committed;

Murray-Darling

Basin has the same meaning as in the Murray-Darling

Basin Act 1993;

native vegetation means a plant or plants of a species indigenous to South Australia including a plant or plants growing in or under waters of the sea but does not include—

a plant or part of a plant that is dead unless the plant, or part of the plant, is of a class declared by regulation to be included in this definition; or

a plant intentionally sown or planted by a person unless the plant was sown or planted—

in compliance with a condition imposed by the Council under this Act or by the Native Vegetation Authority under the repealed Act, or with the order of a court under this Act or the repealed Act; or

in pursuance of a proposal approved by the Council under Part

4 Division 2; or

in circumstances involving the use of money paid into the Fund for the purpose of achieving a significant environmental benefit; or

in compliance with a condition imposed by a Minister, statutory authority or prescribed person or body under—

the

River

Murray Act 2003;

or

the

Water

Resources Act 1997;

or

any other Act prescribed by the regulations for the purposes of this paragraph;

owner of land means—

in relation to land alienated from the Crown by grant in fee simple—the holder of the fee simple;

in relation to dedicated land within the meaning of the Crown

Lands Act 1929 that has not been granted in fee simple but which is under the care, control and management of a Minister, local council or other body or person—the Minister, council or other body or person;

in relation to land held under Crown lease—the lessee;

in relation to land held under an agreement to purchase from the

Crown—the person entitled to the benefit of the agreement;

in relation to any other land—the Minister who is responsible for the care, control and management of the land or, if no Minister is responsible for the land, the Minister for Environment and

Conservation;

pastoral land means land comprised in a lease granted under the Pastoral

Land Management and Conservation Act 1989 over Crown land for the pasturing of stock and other ancillary purposes;

principles of clearance of native vegetation means principles set out in Schedule

1 to which the Council must have regard when determining an application for consent to clear native vegetation;

the repealed Act means the Native

Vegetation Management Act 1985 repealed by this Act;

River

Murray Protection Area means a River Murray Protection Area under the River

Murray Act 2003;

waters of the sea includes any water that is subject to the ebb and flow of the tide.

A plant will be taken to be an isolated plant if—

it is at least one metre in height; and

there is no other plant comprising native vegetation that is 200 millimetres or more in height within 50 metres of it.

Each plant of a group of two or three plants or of a group of plants that is the subject of a determination by the Council under subsection (4) will be taken to be an isolated plant if it would be an isolated plant under subsection (2) except for its proximity to another plant, or other plants, in the group.

The

Council may, where in its opinion the circumstances of a particular case justify a determination under this subsection, determine that each plant of a group of four or more plants will be taken to be an isolated plant.

A determination under subsection (4) must be agreed to by all the members of the Council present at the meeting at which it is made.

The distance between two plants for the purposes of subsection (2) will be taken to be the distance between those parts of the plants that are above ground level and are closest to each other.

A stratum of native vegetation will be taken for the purposes of this

Act to be substantially intact if, in the opinion of the Council—

the stratum has not been seriously degraded by human activity during the immediately preceding period of 20 years; or

the only serious degradation of the stratum by human activity during that period has been caused by fire.

In this section—

stratum of native vegetation means a layer of a plant community consisting of plants that comprise native vegetation and that have a similar growth habit.

Subject to this section, this Act applies to the whole of the State.

This

Act applies in those parts of the Hundreds of Adelaide, Munno Para,

Noarlunga and Yatala—

that are within the zone designated as the Metropolitan Open Space System or Hills Face Zone by the Planning and Design Code under the

Planning,

Development and Infrastructure Act 2016;

or

that are to the east of the Hills Face Zone; or

that are within an area prescribed by regulation for the purposes of this subsection, but does not, subject to subsections (2a) and (2ab), apply in any other part of those Hundreds.

This

Act applies to the whole of the area of the City of Onkaparinga.

This

Act applies in that part of the City of Mitcham consisting of the following suburbs:

Belair;

Bellevue

Heights;

Blackwood;

Coromandel

Valley;

Craigburn

Farm;

Eden

Hills;

Glenalta;

Hawthorndene.

This

Act applies—

in that part of the Hundred of Port Adelaide bounded on the east by the western boundary of Port Wakefield Road and on the south by the northern boundary of the area of the Corporation of the City of

Salisbury; and

in that part of the area of the Corporation of the City of Salisbury bounded on the east by the western boundary of Port Wakefield Road;

in any other part of the Hundred of Port Adelaide prescribed by regulation for the purposes of this subsection, but does not apply in any other part of the Hundred of Port Adelaide.

However, the Governor should not make a regulation under subsection (2) or (2b) unless—

—

the

Governor considers that the regulation should be made in order to enhance the preservation or management of an area that includes significant native vegetation, or in order to assist in the provision of a significant environmental benefit in a particular respect; and

the

Governor is satisfied that the Minister has taken reasonable steps to consult with—

any local council whose area includes any part of the area to which the regulation relates; and

the

Environment, Resources and Development Committee of the Parliament;

and

any member of the House of Assembly whose electoral district includes any part of the area to which the regulation relates, about the proposal to make the regulation; or

—

the

Governor considers that the regulation should be made as an interim measure pending consultation under paragraph (a);

and

the regulation is expressed to expire not more than two months after the day on which it is made.

The

Governor may, by regulation, exclude any other part or parts of the

State from the operation of this Act.

In the event of an inconsistency between this Act and the Fire and Emergency Services Act 2005, the Fire and Emergency Services Act 2005 will prevail to the extent of the inconsistency.

This

Act binds the Crown.

The objects of this Act include—

the conservation, protection and enhancement of the native vegetation of the State and, in particular, remnant native vegetation, in order to prevent further—

reduction of biological diversity and degradation of the land and its soil;

and

loss of quantity and quality of native vegetation in the State; and

loss of critical habitat; and

the provision of incentives and assistance to landowners to encourage the commonly held desire of landowners to preserve, enhance and properly manage the native vegetation on their land; and

the limitation of the clearance of native vegetation to clearance in particular circumstances including circumstances in which the clearance will facilitate the management of other native vegetation or will facilitate the sustainable use of land for primary production; and

the encouragement of research into the preservation, enhancement and management of native vegetation; and

the encouragement of the re-establishment of native vegetation in those parts of the State where native vegetation has been cleared or degraded.

The

Native Vegetation Council is established.

The

Council has the powers, functions and duties conferred, assigned or imposed by this Act.

The

Council consists of seven members appointed by the Minister of whom—

one (who will be the presiding member of the Council) must be nominated by the Minister; and

one must be a person selected by the Minister from a panel of three persons nominated by Primary Producers SA Incorporated; and

one must be a person selected by the Minister from a panel of three persons nominated by the Conservation Council of South Australia;

and

1 must be a person selected by the Minister for the time being responsible for the administration of the Landscape

South Australia Act 2019;

and

one must be a person selected by the Minister from a panel of three persons nominated by the Local Government Association of South

Australia;

1 must be a person with extensive knowledge of, and experience in, planning, development or mining nominated by the Minister after consultation with the Minister for Planning; and

one must be a person with extensive knowledge of, and experience in, the preservation and management of native vegetation nominated by the

Minister.

All members of the Council must have some knowledge of, and experience in, the preservation and management of native vegetation.

The members nominated by Primary Producers SA Incorporated and the Local

Government Association of South Australia must be persons who—

carry on a business of primary production (whether as owner or manager of the business); and

live on, or in close proximity to, the land on which the business is carried on; and

manage the business on a daily basis.

At least one member of the Council must be a woman and one must be a man.

The

Minister may appoint a deputy to a member of the Council and the deputy may, in the absence, or during a temporary vacancy in the office, of that member, act as a member of the Council.

The appointment of a deputy to a member is subject to the same nomination and qualification requirements as the appointment of the member.

In this section—

Minister for Planning means the Minister who has portfolio responsibility for urban and regional planning within the State.

A member of the Council will be appointed for a term not exceeding two years on conditions determined by the Minister and will, on the expiration of a term of office, be eligible for reappointment.

A member may be removed from office by the Minister—

for misconduct; or

for neglect of duty; or

for incompetence; or

for mental or physical incapacity to carry out the duties of office satisfactorily; or

for breach of, or non‑compliance with, a condition of appointment.

The office of a member becomes vacant if the member—

dies;

or

completes a term of office and is not reappointed; or

resigns by written notice addressed to the Minister; or

is removed from office by the Minister under subsection (2).

Upon the office of a member becoming vacant, a person must be appointed in accordance with this Act to the vacant office.

A member of the Council, or of a committee established by the Council, is entitled to such remuneration, allowances and expenses as the

Minister may determine.

The presiding member will preside at meetings of the Council or, in his or her absence, his or her deputy will preside or, in the absence of both of them, a member chosen by those present will preside.

Subject to subsection (3) the Council may act despite vacancies in its membership.

Four members constitute a quorum of the Council.

A decision in which a majority of the members present at a meeting concur is a decision of the Council but if the members are equally divided the decision of the person presiding at the meeting is the decision of the Council.

Subject to this Act, the Council may determine its own procedures.