On 1 July 2017, the current Native Vegetation Regulations will be revoked and replaced by new Regulations. The existing exemptions that are commonly relied upon by developers of energy projects have been altered and the layout of the Regulations has been restructured. This Alert explains the key changes that will impact the clearance of native vegetation for the construction of energy infrastructure such as wind farms, solar farms, electricity generation plants, battery storage, substations and power lines.
The Native Vegetation Regulations 2003 (SA) currently set out limited exemptions for clearance of native vegetation in South Australia. On 1 July 2017, these regulations will be revoked and replaced by the Native Vegetation Regulations 2017 (SA).
The current regulations provide that clearance of native vegetation for specified purposes is exempt from the requirement to obtain approval from the Native Vegetation Council (NV Council) under the Native Vegetation Act 1991.
Currently, clearance of native vegetation associated with construction of wind farms, solar farms and other electricity generation plants, battery storage facilities and ancillary infrastructure such as substations, roads and power lines, is commonly undertaken by way of exemptions that apply to clearance that is incidental to:
- an approved Major Development [r5(1)(c)];
- provision of infrastructure or services approved under the Development Act 1993 [r5(1)(d)];
- development otherwise approved under the Development Act 1993 [r5(1)(da)];
- repair or maintenance work of an electricity entity, or as part of the duty of an electricity entity under the Electricity Act 1996 [r5(1)(f)]; or
- establishing or maintaining access tracks [5(1)(t)].
These exemptions have, in principle, been retained in the 2017 Regulations. However, it is important to note the new restrictions that have been imposed.
The existing exemption for clearance of native vegetation that is incidental to an approved Major Development is retained as regulation 13 and clause 27 of Part 4 of Schedule 1 to the 2017 Regulations.
As per the current regime, the new exemption requires the clearance to be undertaken in accordance with a management plan approved by the NV Council that results in a ‘significant environmental benefit’ (unless a payment has been made into the Fund).
Importantly, however, a new time limit will be imposed on undertaking permitted clearances in accordance with a management plan approved by the NV Council. Regulation 21(2) of the 2017 Regulations provides that the clearance must be commenced within 2 years of the day on which the plan is approved, and undertaken within the time frame specified in the plan.
If a company makes a payment into the Native Vegetation Fund, no management plan to achieve a significant environmental benefit is required. In those circumstances, it appears that the time limit will not apply to the clearance.
Infrastructure, services and other approved development
The existing exemptions for clearance in connection with the provision of infrastructure or services, and clearance incidental to development approved under the Development Act 1993, have been replaced with a requirement to either obtain written approval from the NV Council or clear in accordance with an approved standard operating procedure.
Further, the NV Council has the power to impose conditions on the approval “as the Council thinks fit”.
In determining whether approval should be granted and what conditions to impose, the NV Council is now required to, among other things:
- make an assessment of, and have regard to, the level of risk to biological diversity conservation presented by the clearance proposal;
- consider, and aim to minimise, potential impacts on biological diversity, soil, water and natural resources arising from any proposed clearance;
- consider, and aim to minimise, impacts on species and ecological communities listed as threatened under the EPBC Act and species listed as rare or threatened under the National Parks and Wildlife Act 1972 (SA); and
- consider potential cumulative impact that is reasonably likely to result from a proposed clearance activity.
The NV Council may, but is not required to, take into account the practicability and cost of any reasonable alternative to the proposed clearance when making its decision.
Conditions of approval bind the applicant, all owners and subsequent owners of the land to be cleared, and occupiers of the land to be cleared.
Applications for approval must be made available to the public and the NV Council must allow any person who desires to do so to make written submissions in respect of the application. The NV Council may also allow members of the public to make oral submissions.
Approvals given by the NV Council expire after 2 years.
Approvals are also subject to the condition that the clearance to be undertaken in accordance with a management plan approved by the NV Council that results in a ‘significant environmental benefit’ (unless a payment has been made into the Fund). Where a management plan is used, the clearance must be commenced within 2 years of the day on which the plan is approved, and undertaken within the time frame specified in the plan.
The existing exemptions for clearance in connection with repair or maintenance work of an electricity entity, and clearance as part of the duty of an electricity entity under the Electricity Act 1996 have been retained in regulations 7 and 8 and clause 4 of Part 1 of Schedule 1 to the 2017 Regulations.
Several of the pre-conditions to use of the existing exemptions have been removed.
The existing exemption for clearance to establish or maintain an access track (no more than 5m in width) is retained.
However, addition restrictions on the circumstances in which it can be used have been imposed.
Further, notice must be provided to the NV Council before clearance for the purposes of establishing a new access track.
An expanded exemption in the 2017 regulations allows clearance of vegetation where:
- the land was cleared lawfully within the previous 5 years;
- the clearance is necessary to maintain the land so it can continue to be used for the existing use (to the extent it has been used for the purpose during the previous 5 years); and
- the vegetation to be cleared consists of plants or parts of plants that have regrown in the previous 5 years.
This Alert is intended as an alert only. It does not purport to be comprehensive advice. Readers should seek professional advice before acting in relation to these matters.