Order where native vegetation has been cleared
31B Order where native vegetation has been cleared
Subject to subsection (6)(d) or (7), where the ERD Court is satisfied on the balance of probabilities that the respondent—
has cleared native vegetation in contravention of this Act; or
has cleared native vegetation pursuant to the Council's consent but has not complied with a condition of a kind referred to in section 30(2) attached to the consent, the
Court must make an order against the respondent under section 31A(6)(d).
The order under section 31A(6)(d) must direct the respondent to—
remove the buildings, works or vegetation (if any) that have been erected, undertaken or planted on the land since the clearance occurred; and
establish vegetation consisting of plants of a species specified in the order in such numbers and on such parts of the cleared land as is specified in the order; and
nurture, protect and maintain the plants until they are fully established or for such period as is specified in the order.
The order under section 31A(6)(d) may—
where
part of the original vegetation is still growing or situated on the land—direct that it be removed so that the new vegetation can be established on the land;
include such ancillary directions or orders as the Court thinks fit.
Where the respondent is not the owner or occupier of the land, the order authorises him or her (or a person authorised by him or her) to—
enter the land with such materials and equipment as are reasonably necessary to comply with the order; and
to enter and cross any other land specified in the order with the materials and equipment referred to in paragraph (a) for the purpose of gaining access to the cleared land.
An owner or occupier of land or any other person who hinders or obstructs the respondent (or a person authorised by the respondent) in carrying out the directions of an order under this section or entering and crossing land under subsection (4) is guilty of an offence.
Maximum penalty: $10 000.
If the ERD Court is satisfied on the balance of probabilities that—
the owner or occupier of the cleared land did not know and could not reasonably have been expected to know of the circumstances referred to in subsection (1) requiring the making of an order under section 31A(6)(d);
and
compliance with an order under section 31A(6)(d) will cause financial loss to that person, the
Court may—
assess the amount of the financial loss and order the respondent to pay that amount to the owner or occupier of the land; or
refuse to make the order or make the order in a modified form.
If the Court is satisfied that compliance with any order under section 31A(6)(d) would not be reasonably practicable, it may refuse to make the order.
However, the Court cannot take into account financial grounds when making an assessment under subsection (7) unless the Court is satisfied that it would be unduly harsh not to do so.
The
Court must include in the order a requirement that a copy of the order be served on the Registrar-General and that the
Registrar-General note the order against the relevant certificate or other instrument of title or, in the case of land not under the Real
Property Act 1886, against the land (and the Registrar-General must, on service of the order, make the note and then must not remove the note except pursuant to an order of the Court).
If, in the opinion of the Court, it should refuse under subsection (6)(d) or (7) to make an order under section 31A(6)(d), the Court may make an order against the respondent requiring the establishment of vegetation in accordance with the provisions of this section on some other land owned by the respondent.
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