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Not just reinstatement - the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill 2016 - 22 July 2016

Rarely has a piece of environmental legislation generated as much impassioned support, and opposition, as the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill 2016 (Reinstatement Bill). Introduced to Parliament on 18 March 2016, the Reinstatement Bill contains a suite of reforms directed primarily at reinstating specific aspects of the vegetation management laws in effect immediately prior to the former LNP government’s reform of the vegetation management framework in 2013. While the title of the Reinstatement Bill suggests that it does no more than “reinstate” past law, it is apparent from a close reading of the provisions that it goes further than “reinstatement”, particularly in relation to proposed amendments to the Environmental Offsets Act 2014.

The Reinstatement Bill was referred to the Agriculture and Environment Committee. The Committee was to provide its report to the House by 30 June 2016. In considering the Reinstatement Bill, the Committee received nearly 700 submissions, and held public hearings in eight locations throughout Queensland.

This article outlines the responses of key stakeholders in an urban development context to the provisions of the Reinstatement Bill.

Key Reforms

The Reinstatement Bill contains the following reforms:                                                                               

Amendment of the Vegetation Management Act 1999 (VMA) and the Sustainable Planning Act 2009 (SPA)

  • Reinstatement of the regulation of high value regrowth clearing on freehold and indigenous land (category C);
  • Removal of the provisions which permit vegetation clearing for high-value agriculture and irrigated high-value agriculture;
  • Broadening the protection of regrowth vegetation watercourse areas (category R) to include all of the Great Barrier Reef catchments;
  • Reinstatement of compliance provisions to reverse the onus of proof and remove the ‘mistake of fact’ defence for vegetation clearing offences;
  • Introduction of a new item of prohibited development for the SPA.

Amendment of the Water Act 2000

  • Reinstatement of the requirement for a riverine protection permit for the destruction of vegetation in a watercourse.

Amendment of the Environmental Offsets Act 2014 (Offsets Act)

  • Removal of “significant” in the context of determining “residual impact”.
  • The proposal that a number of the amendments have retrospective effect (from 17 March 2016 when the Bill was introduced) is also a significant feature of the Reinstatement Bill.

Key Stakeholders

Environmental groups

On the whole, the Reinstatement Bill is supported by the various environmental organisations who made submissions and appeared before the Committee. In addition, several submissions urge the government to also consider further changes including:

  • Amendments to the Offsets Act to remove the limitations on local government offsets and the cap (4:1) on the quantum of offsets;
  • Increasing controls on clearing in urban areas, including by reinstatement of the 2 hectare “trigger” (changed to 5 hectares in 2013) for clearing of vegetation in urban areas;
  • Application of the VMA’s protection for Great Barrier Reef watercourses to all watercourses in Queensland; Amendment of self-assessable codes to further restrict clearing;
  • Restoring the Department of Natural Resources’ concurrence agency “powers”, that is, separating responsibility for assessment of clearing under the VMA from the State Assessment and Referral Agency.

Urban development

Peak bodies representing the urban development industry were frustrated at the lack of consultation in relation to the Reinstatement Bill and expressed particular concerns about:

  • The consequences for urban development of the reinstatement of regulation of high value regrowth clearing on freehold land, particularly for urban development in investigation areas or urban fringe where land may not be zoned for urban purposes;
  • The uncertainty brought about by the proposed retrospectivity of certain provisions (in relation to development applications, applications for PMAV and clearing undertaken from 17 March 2016) and the inherent unfairness of those provisions having retrospective effect in the absence of compensation;
  • The removal of the threshold of “significant”, meaning that all residual impacts will require offsetting under the Offsets Act and the misalignment this change creates between the federal and state offsets regimes;
  • The interference with fundamental legal principles as a result of the reversal of the onus of proof and remove the ‘mistake of fact’ defence for vegetation clearing offences.

Observations

It is clear that the Reinstatement Bill has consequences for development in an urban context, notwithstanding that urban development is frequently able to rely on the “urban purpose” in an “urban area” exemption under the SPA. In particular, the removal of the threshold of “significant” under the Offsets Act will undoubtedly give rise to greater offset requirements, and a greater number of projects caught in the offsets net.

It also emerges from a consideration of the submissions that environmental groups have an agenda in relation to vegetation management that goes beyond the scope of the Reinstatement Bill. Many of the proposals would have a considerable impact on urban development. With the government presently reviewing the South East Queensland Regional Plan and the single State Planning Policy, it is important to be alive to proposed reform measures and their potential impacts on your development projects. 

This article forms part of the Winter Edition of Envisage: HopgoodGanim Lawyers' Quarterly Planning & Environment magazine

For more information or discussion, please contact our Planning & Environment team.  

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