The Native Vegetation Act 1991 (SA) was a progressive piece of legislation designed to prevent the continued broad scale clearance of native vegetation for agriculture and urban development in South Australia. The Act applies throughout the State and covers both private and public land. The objects of the Act include [s 6]:
1. the provision of incentives and assistance to landowners in relation to the preservation, enhancement and management of native vegetation; and
2. the conservation of the native vegetation of the State in order to prevent further reduction of biological diversity and further degradation of the land and its soil
Native Vegetation is defined in the Act as:
"a plant or plants of a species indigenous to South Australia (ie. naturally occurring local native plants) including a plant or plants growing in or under waters of the sea but does not include:
1. a plant or part of a plant that is dead (unless declared by regulation to be native vegetation)
2. plant intentionally sown or planted (unless planted in compliance with a condition imposed by the Act or a Minister or statutory authority, etc under other relevant legislation)
This broad definition includes not only trees, but also shrubs, grasses, groundcovers, moss, lichen, reeds and seaweed. Recent amendments to the Act cover dead trees that provide habitat for endangered species.
The primary obligation imposed by the Act on land holders and others is to not clear native vegetation unless the clearance is in accordance with the Act. Approval to clear native vegetation can be granted by the Native Vegetation Council - a statutory body established under the Act. In other cases, clearance may be undertaken pursuant to exemptions contained in the Native Vegetation Regulations [see below]. Another important limitation is that the Act does not apply to native vegetation growing in the Adelaide Metropolitan Area (but does apply in some parts of some councils covering the foothills of the Mount Lofty Ranges ). If in doubt, contact the Native Vegetation Secretariat in the South Australian Department of Environment, Water and Natural Resources (click here).
Clearance of native vegetation under the Act is defined broadly and includes almost anything that can be done to kill or harm native vegetation including burning, chopping limbs or anything else that causes substantial damage [Native Vegetation Act 1991 s 3].
In exercising its powers to grant permission to clear native vegetation, the Native Vegetation Council is bound by a set of Principles of clearance [see Schedule 1 of the Act]. These principles include broad objectives aimed at preserving biological diversity. The result of the Native Vegetation Council applying these principles is that most applications for broad acre clearance to clear are refused. On the other hand, applications to clear individual or scattered trees are usually approved.
Under an earlier version of the Act, applicants (mostly farmers) who were refused permission to clear could get compensation from the government. This had the effect of increasing the number of applications and decreasing the resources of the Department. The current Act has no provision for compensation, although financial assistance is available to help land holders fence or otherwise manage native vegetation on their properties.
Exemptions from the need to apply for native vegetation clearance approval cover a wide range of activities such as road building and firewood collection. No permission is required to clear vegetation for firebreaks, building construction or along fence lines. The exemptions cover many pages of regulations and advice should always be sought before attempting any clearance pursuant to exemptions as penalties for illegal clearance are severe.
As well as preventing clearance of native vegetation, the Act also provides for existing native vegetation to be protected and managed. One of the key tools is the use of Heritage Agreements. These agreements are legally binding contracts whereby the owner of the land agrees to manage the land for conservation. The Heritage Agreement does not affect the ownership of the land, however it does bind subsequent purchasers because the agreement is noted on the certificate of title to the land. To date, more than half a million hectares of privately owned bushland has been protected under Heritage Agreements. Information booklets covering the Act are available free of charge from the South Australian Department of Environment, Water and Natural Resources.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.