Native Vegetation Variation Regulations 2009 (SA)

South Australia

Native Vegetation Variation Regulations 2009

under the Native Vegetation Act 1991

Contents

Part 1—Preliminary

1. Short title

2. Commencement

3. Variation provisions

Part 2—Variation of Native Vegetation Regulations 2003

1. Insertion of regulation 3A

   3ADefinition of native vegetation—dead plants

2. Variation of regulation 5—Exemptions—general

3. Insertion of regulation 5A

   5AExemptions—fire prevention and control

4. Variation of regulation 6—Restrictions on clearance of native vegetation

5. Revocation of regulation 7

6. Revocation of regulation 9

Part 1—Preliminary

1—Short title

These regulations may be cited as the Native Vegetation Variation Regulations 2009.

2—Commencement

These regulations come into operation on the day on which they are made.

3—Variation provisions

In these regulations, a provision under a heading referring to the variation of specified regulations varies the regulations so specified.

Part 2—Variation of Native Vegetation Regulations 2003

4—Insertion of regulation 3A

After regulation 3 insert:

3A—Definition of native vegetation—dead plants

For the purposes of paragraph (a) of the definition of native vegetation in section 3(1) of the Act, the class of plants, or parts of plants, comprising trees of a species indigenous to South Australia—

(a)that have a trunk circumference (measured at a point 300 millimetres above the base of the tree) of—

(i)in the case of a tree located on Kangaroo Island—1 metre or more; or

(ii)in any other case—2 metres or more; and

(b)that provide or have the potential to provide, or are a part of a group of trees or other plants (whether alive or dead) that provide or have the potential to provide, a habitat for animals of a listed threatened species under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth,

is declared to be included in that definition.

5—Variation of regulation 5—Exemptions—general

1. Regulation 5(1)(k) and (ka)—delete paragraphs (k) and (ka) and substitute:

   (k)if the vegetation is growing or situated—

   (i)not more than 20 metres from a prescribed building; or

   (ii)not more than 5 metres from a prescribed structure;

   Note—

   The clearance of native vegetation under this paragraph is limited by regulation 6(1).

2. Regulation 5(1)—after paragraph (la) insert:

   (lb)if—

   (a)the clearance of the vegetation is necessary to protect public safety; and

   (b)the clearance is undertaken in accordance with a written approval of a person or body authorised by the Minister, by notice in the Gazette, for the purpose of this paragraph,

   (and the operation of this paragraph extends to vegetation on land that is subject to a heritage agreement);

3. Regulation 5(1)(m), (n) and (o)—delete paragraphs (m), (n) and (o)

4. Regulation 5(1)(v), (w) and (x)—delete paragraphs (v), (w) and (x)

5. Regulation 5(1)(z) and (za)—delete paragraphs (z) and (za)

6. Regulation 5(1)(zi)—delete "biological diversity" and substitute:

   ecological processes

7. Regulation 5(1c) to (6)—delete subregulations (1c) to (6) (inclusive) and substitute:

   (2)A notice authorising a person for the purposes of subregulation (1)(lb) may be of general application or vary in its application according to prescribed factors.

   (3)The Minister may, by subsequent notice in the Gazette, vary or revoke a notice under subregulation (1)(lb).

8. Regulation 5—after subregulation (11) insert:

   (12)In this regulation—

   Building Code has the same meaning as in the Development Act 1993;

   prescribed building means—

   (a)a building within the meaning of the Development Act 1993 (other than a Class 7A or 10B building under the Building Code) that is permanently fixed to land; and

   (b)a building of a kind contemplated by paragraph (a) that is in the course of construction if the foundations, a concrete slab or other footings have been completed; and

   (c)any other building or structure of a class declared by the Minister by notice in the Gazette to be included in the ambit of this definition,

   but does not include any building or structure of a class declared by the Minister by notice in the Gazette to be excluded from the ambit of this definition;

   prescribed structure means—

   (a)a structure that is permanently fixed to land and used for, or in relation to, 1 or more of the following purposes:

   (i)primary production;

   (ii)the housing or feeding of animals;

   (iii)the storage of fodder;

   (iv)the storage of vehicles or vessels;

   (v)any other purpose declared by the Minister by notice in the Gazette to be included within the ambit of this paragraph; and

   (b)any other structure of a class declared by the Minister by notice in the Gazette to be included within the ambit of this definition,

   but does not include—

   (c)a prescribed building; and

   (d)any structure of a class declared by the Minister by notice in the Gazette to be excluded from the ambit of this definition.

   (13)The Minister may, by subsequent notice in the Gazette, vary or revoke a notice under subregulation (12).

6—Insertion of regulation 5A

After regulation 5 insert:

5A—Exemptions—fire prevention and control

(1)Pursuant to section 27(1)(b) of the Act and subject to these regulations, native vegetation may be cleared in the following circumstances (being circumstances in which the clearance is for a purpose related to fire prevention or control):

(a)if—

(i)the vegetation is growing or situated—

(A)more than 20 metres from a prescribed building; or

(B)more than 5 metres from a prescribed structure; and

(ii)the clearance is undertaken in accordance with the written approval of the Chief Officer of SACFS;

(b)if—

(i)the purpose of the clearance is to reduce combustible material on land; and

(ii)the clearance—

(A)is required or authorised by, and undertaken in accordance with, a bushfire prevention plan; or

(B)is undertaken in accordance with the written approval of the Chief Officer of SACFS; or

(C)in the case of a clearance in a reserve constituted under the National Parks and Wildlife Act 1972 or in a wilderness protection zone or area constituted under the Wilderness Protection Act 1992—the clearance is undertaken in accordance with a standard operating procedure determined or approved by the Council for the purposes of this subsubparagraph; or

(D)in the case of a clearance on any other land of a class declared by the Minister by notice in the Gazette to be a class of land to which this subsubparagraph applies—the clearance is undertaken in accordance with a standard operating procedure determined or approved by the Council for the purposes of this subsubparagraph;

(c)if the clearance is undertaken by, or in accordance with a direction or determination of—

(i)an officer of SAMFS exercising a power conferred under section 42 of the Fire and Emergency Services Act 2005; or

(ii)an officer of SACFS exercising a power conferred under section 82 or 97 of the Fire and Emergency Services Act 2005; or

(iii)a responsible authority (within the meaning of section 83 of the Fire and Emergency Services Act 2005) exercising a power under that section; or

(iv)an officer of SASES exercising a power conferred under section 118 of the Fire and Emergency Services Act 2005;

(d)if—

(i)the clearance is for the purpose of establishing or maintaining a fire access track; and

(ii)is undertaken in accordance with the written approval of the Chief Officer of SACFS;

(e)if—

(i)the clearance is for a fuel break that is—

(A)along an existing fence‑line; or

(B)on the boundary between land owned by different persons, where part or all of the proposed fuel break is in an area of a mallee scrub community that is the subject of a declaration by the Council under subregulation (7) that is in force; or

(C)on a property situated in the area of a rural council and that is used principally for primary production; or

(D)required or authorised by a bushfire prevention plan; and

(ii)the clearance complies with the following provisions:

(A)in the case of fuel break along an existing fence‑line—the total width of the fuel break must not exceed 5 metres;

(B)in the case of fuel break on the boundary between land owned by different persons in an area of a mallee scrub community (being an area that is the subject of a declaration under subregulation (7))—the total width of the fuel break must not exceed 7.5 metres;

(C)in the case of a fuel break on a property situated in the area of a rural council used principally for primary production—

•the total width of the fuel break must not exceed 20 metres; and

•the clearance must be required by or authorised under a bushfire prevention plan, or undertaken in accordance with the written approval of the Chief Officer of SACFS;

(D)in any case—the clearance is undertaken in accordance with a bushfire prevention plan applying to the area in which the vegetation is growing or situated;

(f)if the clearance is otherwise required or authorised by, and is carried out in accordance with, a bushfire prevention plan applying to the area in which the vegetation is growing or situated.

(2)However, subregulation (1)(e) does not authorise the clearance of native vegetation for a fuel break if any point of the proposed fuel break would be within 200 metres of any land—

(a)that is sufficiently clear of vegetation so as to constitute a fuel break (other than a fuel break that runs approximately at right‑angles to the proposed fuel break); and

(b)that provides comparable protection to the proposed fire break.

Note—

This subregulation does not prevent a person from applying to the Council for consent to clear such a fire break.

(3)For the purposes of subregulation (2)(a), in determining whether a proposed fuel break is within 200 metres from any land that is sufficiently clear of vegetation so as to constitute a fuel break, the following matters are not to be taken into account:

(a)whether or not the land is a fuel break cleared under this regulation or a previous provision of these regulations;

(b)whether or not the land is owned by the same person or different persons.

(4)In granting an approval for the purposes of this regulation, the Chief Officer of SACFS—

(a)may only grant the approval if he or she is satisfied that the clearance is reasonably required or appropriate for the purpose of fire prevention or control; and

(b)must have regard to any relevant bushfire prevention plan; and

(c)must have regard to any guidelines specified by the Minister for the purposes of this subregulation.

(5)The operation of this regulation extends to vegetation on land that is subject to a heritage agreement.

(6)Nothing in this regulation authorises the clearance of native vegetation if such clearance would be contrary to any other Act or law.

(7)The Council may, by notice in the Gazette, declare that subregulation (1)(e)(i)(B) applies in relation to an area of a mallee scrub community identified in the notice and may, by subsequent notice in the Gazette, vary or revoke such a declaration.

(8)In this regulation—

bushfire prevention plan means a plan for bushfire prevention prepared by a district bushfire prevention committee under the Fire and Emergency Services Act 2005, as in force from time to time;

fire access track means a track (not exceeding 15 metres in width) constructed for use by vehicles undertaking firefighting activities;

firefighting has the same meaning as in the Fire and Emergency Services Act 2005;

prescribed building has the same meaning as in regulation 5;

prescribed structure has the same meaning as in regulation 5;

rural council has the same meaning as in the Fire and Emergency Services Act 2005.

7—Variation of regulation 6—Restrictions on clearance of native vegetation

1. Regulation 6(1)—delete subregulation (1) and substitute:

   (1)Native vegetation may not be cleared pursuant to regulation 5(1)(k)—

   (a)if the vegetation—

   (i)consists of a tree that has a trunk circumference (measured at a point 300 millimetres above the base of the tree) of 2 metres or more; and

   (ii)is situated within the 1956 flood plain of the River Murray, other than where the vegetation is within the area of a city or township; or

   (b)in any circumstances declared by the Minister, by notice in the Gazette, to be included in the ambit of this subregulation.

   (1a)The Minister may, by subsequent notice in the Gazette, vary or revoke a notice under subregulation (1)(b).

2. Regulation 6(2)—delete ", (u), (v) or (z)" and substitute:

   or (u)

8—Revocation of regulation 7

Regulation 7—delete the regulation

9—Revocation of regulation 9

Regulation 9—delete the regulation

Note—

As required by section 10AA(2) of the Subordinate Legislation Act 1978, the Minister has certified that, in the Minister's opinion, it is necessary or appropriate that these regulations come into operation as set out in these regulations.

Made by the Governor

with the advice and consent of the Executive Council

on 10 September 2009

No 234 of 2009