South Australia: Native Vegetation Act 1991 (SA)

South Australia Native Vegetation Act 1991 An Act to provide incentives and assistance to landowners in relation to the preservation and enhancement of native vegetation; to control the clearance of native vegetation; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 3A Substantially intact vegetation 4 Application of Act 4A Interaction with Fire and Emergency Services Act 2005 5 Act to bind Crown Part 2—Objects of this Act 6 Objects Part 3—Administration Division 1—The Native Vegetation Council 7 Establishment of the Council 8 Membership of the Council 9 Conditions of office 10 Allowances and expenses 11 Procedures at meetings of the Council 12 Validity of acts of Council 13 Application of Public Sector (Honesty and Accountability) Act 14 Functions of Council 15 Delegation of powers and functions 16 Staff 17 Annual report Division 3—The Native Vegetation Fund 21 The Fund 22 Accounts and audit Part 4—Heritage agreements, proposals for revegetation and financial and other assistance Division 1—Heritage agreements 23 Heritage agreements 23A Effect of heritage agreement 23B Registration of heritage agreements Division 2—Approval by the Council of proposal for revegetation 23D Application of Division 23E Declaration in relation to existing vegetation 23F Proposal for revegetation of land 23G Information required on application or submission 23H Decision by the Council 23I Noting of Council's approval against the title to the land Division 3—Financial and other assistance 24 Assistance to landowners 25 Guidelines for the application of assistance and the management of native vegetation Part 4A—Credit, assignment and third party establishment of environmental benefits 25A Credit for environmental benefits 25B Assignment of credit 25C Achievement of environmental benefit by accredited third party provider 25D Management agreements 25E Register Part 5—Clearance and enforcement Division 1—Control of clearance 26 Offence of clearing native vegetation contrary to this Part 27 Clearance of native vegetation 28 Application for consent 29 Provisions relating to consent 29A Avoidance of duplication of procedures etc 30 Conditions of consent 30A Marking or tagging of cleared vegetation Division 2—Civil enforcement proceedings 31A Application to ERD Court for enforcement 31B Order where native vegetation has been cleared 31C Interim order 31D Enforcement of orders 31E Enforcement notices 31EA Substituted direction where compliance with enforcement notice not reasonably practicable 31F Miscellaneous provisions 32 Appeals 33 Commencement of proceedings Division 3—Authorised officers 33A Appointment of authorised officers 33B Powers of authorised officers 33C Issue of warrants 33D Provisions relating to seizure 33E Offence to hinder etc authorised officers 33EA Offences by authorised officers etc Part 5B—Interest and recovery of money 33H Interest 33I Sale of land for non-payment Part 6—Miscellaneous 33J Constitution and criminal jurisdiction of ERD Court 33K Applications during criminal proceedings 34 Evidentiary 35 Proceedings for an offence 36 Assessment of costs and expenses 38 Vicarious liability 39 Offences by bodies corporate 40 General defence 40A Register of applications 40B Ministerial power of delegation 41 Regulations Schedule 1—Principles of native vegetation clearance 1 Principles of clearance of native vegetation 2 Interpretation Schedule 2—Transitional provisions Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Native Vegetation Act 1991. 3—Interpretation (1) In this Act, unless the contrary intention appears— Adelaide Dolphin Sanctuary has the same meaning as in the Adelaide Dolphin Sanctuary Act 2005; biological diversity or biodiversity means the variety of life forms represented by plants, animals and other organisms and micro-organisms, the genes that they contain, and the ecosystems and ecosystem processes of which they form a part; breach of this Act means a contravention of, or a failure to comply with, a provision of this Act and includes a contravention of, or a failure to comply with, a term of a heritage agreement; building includes a structure that is fixed to land; to clear native vegetation includes to cause or permit the clearance of native vegetation; clearance, in relation to native vegetation, means— (a) the killing or destruction of native vegetation; (b) the removal of native vegetation; (c) the severing of branches, limbs, stems or trunks of native vegetation; (d) the burning of native vegetation; (e) any other substantial damage to native vegetation, and includes the draining or flooding of land, or any other act or activity, that causes the killing or destruction of native vegetation, the severing of branches, limbs, stems or trunks of native vegetation or any other substantial damage to native vegetation; the Council means the Native Vegetation Council established by this Act; ERD Court means the Environment, Resources and Development Court; the Fund means the Native Vegetation Fund established by this Act; isolated plant—see subsections (2) and (3); land includes— (a) land submerged by water; and (b) an interest in land; landscape management region means a landscape management region established under the Landscape South Australia Act 2019; local council means a municipal or district council; member means a member of the Council; Minister for the Adelaide Dolphin Sanctuary means the Minister to whom the administration of the Adelaide Dolphin Sanctuary Act 2005 is committed; Murray-Darling Basin has the same meaning as in the Murray-Darling Basin Act 1993; native vegetation means a plant or plants of a species indigenous to South Australia including a plant or plants growing in or under waters of the sea but does not include— (a) a plant or part of a plant that is dead unless the plant, or part of the plant, is of a class declared by regulation to be included in this definition; or (b) a plant intentionally sown or planted by a person unless the plant was sown or planted— (i) in compliance with a condition imposed by the Council under this Act or by the Native Vegetation Authority under the repealed Act, or with the order of a court under this Act or the repealed Act; or (ii) in pursuance of a proposal approved by the Council under Part 4 Division 2; or (iia) in circumstances involving the use of money paid into the Fund for the purpose of achieving a significant environmental benefit; or (iii) in compliance with a condition imposed by a Minister, statutory authority or prescribed person or body under— (A) the River Murray Act 2003; or (B) the Water Resources Act 1997; or (C) any other Act prescribed by the regulations for the purposes of this paragraph; owner of land means— (a) in relation to land alienated from the Crown by grant in fee simple—the holder of the fee simple; (ab) in relation to dedicated land within the meaning of the Crown Lands Act 1929 that has not been granted in fee simple but which is under the care, control and management of a Minister, local council or other body or person—the Minister, council or other body or person; (b) in relation to land held under Crown lease—the lessee; (c) in relation to land held under an agreement to purchase from the Crown—the person entitled to the benefit of the agreement; (d) in relation to any other land—the Minister who is responsible for the care, control and management of the land or, if no Minister is responsible for the land, the Minister for Environment and Conservation; pastoral land means land comprised in a lease granted under the Pastoral Land Management and Conservation Act 1989 over Crown land for the pasturing of stock and other ancillary purposes; principles of clearance of native vegetation means principles set out in Schedule 1 to which the Council must have regard when determining an application for consent to clear native vegetation; the repealed Act means the Native Vegetation Management Act 1985 repealed by this Act; River Murray Protection Area means a River Murray Protection Area under the River Murray Act 2003; waters of the sea includes any water that is subject to the ebb and flow of the tide. (2) A plant will be taken to be an isolated plant if— (a) it is at least one metre in height; and (b) there is no other plant comprising native vegetation that is 200 millimetres or more in height within 50 metres of it. (3) Each plant of a group of two or three plants or of a group of plants that is the subject of a determination by the Council under subsection (4) will be taken to be an isolated plant if it would be an isolated plant under subsection (2) except for its proximity to another plant, or other plants, in the group. (4) The Council may, where in its opinion the circumstances of a particular case justify a determination under this subsection, determine that each plant of a group of four or more plants will be taken to be an isolated plant. (5) A determination under subsection (4) must be agreed to by all the members of the Council present at the meeting at which it is made. (6) The distance between two plants for the purposes of subsection (2) will be taken to be the distance between those parts of the plants that are above ground level and are closest to each other. 3A—Substantially intact vegetation (1) A stratum of native vegetation will be taken for the purposes of this Act to be substantially intact if, in the opinion of the Council— (a) the stratum has not been seriously degraded by human activity during the immediately preceding period of 20 years; or (b) the only serious degradation of the stratum by human activity during that period has been caused by fire. (2) In this section— stratum of native vegetation means a layer of a plant community consisting of plants that comprise native vegetation and that have a similar growth habit. 4—Application of Act (1) Subject to this section, this Act applies to the whole of the State. (2) This Act applies in those parts of the Hundreds of Adelaide, Munno Para, Noarlunga and Yatala— (a) that are within the zone designated as the Metropolitan Open Space System or Hills Face Zone by the Planning and Design Code under the Planning, Development and Infrastructure Act 2016; or (b) that are to the east of the Hills Face Zone; or (c) that are within an area prescribed by regulation for the purposes of this subsection, but does not, subject to subsections (2a) and (2ab), apply in any other part of those Hundreds. (2a) This Act applies to the whole of the area of the City of Onkaparinga. (2ab) This Act applies in that part of the City of Mitcham consisting of the following suburbs: (a) Belair; (b) Bellevue Heights; (c) Blackwood; (d) Coromandel Valley; (e) Craigburn Farm; (f) Eden Hills; (g) Glenalta; (h) Hawthorndene. (2b) This Act applies— (a) in that part of the Hundred of Port Adelaide bounded on the east by the western boundary of Port Wakefield Road and on the south by the northern boundary of the area of the Corporation of the City of Salisbury; and (b) in that part of the area of the Corporation of the City of Salisbury bounded on the east by the western boundary of Port Wakefield Road; (c) in any other part of the Hundred of Port Adelaide prescribed by regulation for the purposes of this subsection, but does not apply in any other part of the Hundred of Port Adelaide. (2c) However, the Governor should not make a regulation under subsection (2) or (2b) unless— (a) — (i) the Governor considers that the regulation should be made in order to enhance the preservation or management of an area that includes significant native vegetation, or in order to assist in the provision of a significant environmental benefit in a particular respect; and (ii) the Governor is satisfied that the Minister has taken reasonable steps to consult with— (A) any local council whose area includes any part of the area to which the regulation relates; and (B) the Environment, Resources and Development Committee of the Parliament; and (C) any member of the House of Assembly whose electoral district includes any part of the area to which the regulation relates, about the proposal to make the regulation; or (b) — (i) the Governor considers that the regulation should be made as an interim measure pending consultation under paragraph (a); and (ii) the regulation is expressed to expire not more than two months after the day on which it is made. (3) The Governor may, by regulation, exclude any other part or parts of the State from the operation of this Act. 4A—Interaction with Fire and Emergency Services Act 2005 In the event of an inconsistency between this Act and the Fire and Emergency Services Act 2005, the Fire and Emergency Services Act 2005 will prevail to the extent of the inconsistency. 5—Act to bind Crown This Act binds the Crown. Part 2—Objects of this Act 6—Objects The objects of this Act include— (a) the conservation, protection and enhancement of the native vegetation of the State and, in particular, remnant native vegetation, in order to prevent further— (i) reduction of biological diversity and degradation of the land and its soil; and (ii) loss of quantity and quality of native vegetation in the State; and (iii) loss of critical habitat; and (b) the provision of incentives and assistance to landowners to encourage the commonly held desire of landowners to preserve, enhance and properly manage the native vegetation on their land; and (c) the limitation of the clearance of native vegetation to clearance in particular circumstances including circumstances in which the clearance will facilitate the management of other native vegetation or will facilitate the sustainable use of land for primary production; and (d) the encouragement of research into the preservation, enhancement and management of native vegetation; and (e) the encouragement of the re-establishment of native vegetation in those parts of the State where native vegetation has been cleared or degraded. Part 3—Administration Division 1—The Native Vegetation Council 7—Establishment of the Council (1) The Native Vegetation Council is established. (2) The Council has the powers, functions and duties conferred, assigned or imposed by this Act. 8—Membership of the Council (1) The Council consists of seven members appointed by the Minister of whom— (a) one (who will be the presiding member of the Council) must be nominated by the Minister; and (b) one must be a person selected by the Minister from a panel of three persons nominated by Primary Producers SA Incorporated; and (c) one must be a person selected by the Minister from a panel of three persons nominated by the Conservation Council of South Australia; and (d) 1 must be a person selected by the Minister for the time being responsible for the administration of the Landscape South Australia Act 2019; and (e) one must be a person selected by the Minister from a panel of three persons nominated by the Local Government Association of South Australia; (f) 1 must be a person with extensive knowledge of, and experience in, planning, development or mining nominated by the Minister after consultation with the Minister for Planning; and (g) one must be a person with extensive knowledge of, and experience in, the preservation and management of native vegetation nominated by the Minister. (2) All members of the Council must have some knowledge of, and experience in, the preservation and management of native vegetation. (3) The members nominated by Primary Producers SA Incorporated and the Local Government Association of South Australia must be persons who— (a) carry on a business of primary production (whether as owner or manager of the business); and (b) live on, or in close proximity to, the land on which the business is carried on; and (c) manage the business on a daily basis. (4) At least one member of the Council must be a woman and one must be a man. (6) The Minister may appoint a deputy to a member of the Council and the deputy may, in the absence, or during a temporary vacancy in the office, of that member, act as a member of the Council. (7) The appointment of a deputy to a member is subject to the same nomination and qualification requirements as the appointment of the member. (8) In this section— Minister for Planning means the Minister who has portfolio responsibility for urban and regional planning within the State. 9—Conditions of office (1) A member of the Council will be appointed for a term not exceeding two years on conditions determined by the Minister and will, on the expiration of a term of office, be eligible for reappointment. (2) A member may be removed from office by the Minister— (a) for misconduct; or (b) for neglect of duty; or (c) for incompetence; or (d) for mental or physical incapacity to carry out the duties of office satisfactorily; or (e) for breach of, or non‑compliance with, a condition of appointment. (3) The office of a member becomes vacant if the member— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice addressed to the Minister; or (d) is removed from office by the Minister under subsection (2). (4) Upon the office of a member becoming vacant, a person must be appointed in accordance with this Act to the vacant office. 10—Allowances and expenses A member of the Council, or of a committee established by the Council, is entitled to such remuneration, allowances and expenses as the Minister may determine. 11—Procedures at meetings of the Council (1) The presiding member will preside at meetings of the Council or, in his or her absence, his or her deputy will preside or, in the absence of both of them, a member chosen by those present will preside. (2) Subject to subsection (3) the Council may act despite vacancies in its membership. (3) Four members constitute a quorum of the Council. (4) A decision in which a majority of the members present at a meeting concur is a decision of the Council but if the members are equally divided the decision of the person presiding at the meeting is the decision of the Council. (5) Subject to this Act, the Council may determine its own procedures. 12—Validity of acts of Council (1) No act or proceeding of the Council is invalid by reason only of a vacancy in the office of a member, or a defect in the appointment of a member. 13—Application of Public Sector (Honesty and Accountability) Act (1) The Public Sector (Honesty and Accountability) Act 1995 applies to a member of the Council as an advisory body member (whether the Council is providing advice to the Minister or performing some other function). (2) A member of the Council will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995 by reason only of the fact that the member has an interest in a matter that is shared in common with primary producers generally, or a substantial section of primary producers. 14—Functions of Council (1) The Council has the following functions: (a) to keep the condition of the native vegetation of the State under review; and (b) to advise the Minister in relation to— (i) the preservation, enhancement and management of existing native vegetation; and (ii) the re-establishment of native vegetation on land where native vegetation has been cleared or degraded; and (iii) research into the preservation, enhancement and management of native vegetation and the re-establishment of native vegetation on cleared land; and (c) to keep the principles of clearance of native vegetation under review and to advise the Minister of any changes to the principles that it considers are necessary or desirable; and (d) to determine applications for consent to clear native vegetation under Part 5; and (da) to assess and respond to applications referred to the Council under the Planning, Development and Infrastructure Act 2016; and (e) to encourage research into the preservation, enhancement and management of existing native vegetation; and (f) to encourage the re-establishment of native vegetation on land from which native vegetation has been cleared; and (g) to administer the Fund pursuant to Division 3; and (h) such other functions as are assigned to the Council under this or any other Act. (2) The Council, in performing a function, or exercising a power, under this Act— (a) must take into account, and seek to further, the objects of this Act; and (b) must take into account, and seek to further, the principles of clearance of native vegetation (insofar as they are relevant in the particular circumstances); and (c) must take into account the provisions of the State Landscape Strategy, and any other relevant regional landscape plan, under the Landscape South Australia Act 2019, and, in any event, must not act in a manner that is seriously at variance with the principles of clearance of native vegetation. (3) If the Council has reason to believe that a person may have acted in contravention of this Act, the Council should investigate the matter as expeditiously as possible. 15—Delegation of powers and functions (1) Subject to this Act, the Council may, with the approval of the Minister, delegate any of its powers or functions. (2) A delegation under this section— (a) may be made to— (i) the presiding member or another member of the Council; or (ii) a committee established by the Council (whether or not it consists of or includes a member or members of the Council); or (iii) a local council or other body corporate; or (iv) any other person; (b) may be made subject to such conditions as the Council thinks fit; (c) is revocable at will and does not derogate from the power of the Council to act in any matter itself. (3) A delegation and the revocation of a delegation under this section must be in writing. (4) A delegation under this section may be made to the person for the time being holding an office or position specified in the delegation. (5) Where the Council delegates powers or functions to a local council in pursuance of this section, the local council may, with the approval of the Council, subdelegate those powers to a committee or officer of the local council. (5a) The Council may only make a delegation to a local council or an officer of a local council under subsection (2) with the written approval of the relevant council. (5b) The Council may only make a delegation to a local council or an officer of a local council under subsection (2), or approve a subdelegation to a committee or officer of a local council under subsection (5), if— (a) in the case of a delegation to a local council or a subdelegation to a committee—the Council makes it a condition of the delegation or approval (as the case may be) that the local council or committee will, in the exercise or performance of a delegated power or function, seek the advice of a person who holds a qualification in a field of natural resource management, or in biology; (b) in the case of a delegation or subdelegation to an officer of a local council—the officer is a person who holds a qualification in a field of natural resource management, or in biology. (6) A person to whom powers or functions are delegated under this section is disqualified from acting in pursuance of the delegation in relation to any matter in which the delegate has a personal interest or a direct or indirect pecuniary interest. Maximum penalty: $5 000. (7) A person who is a member of a local council or the governing body of a body corporate to which powers or functions are delegated under this section is disqualified from taking part in any deliberations or decisions of the local council or body corporate made pursuant to the delegation in relation to any matter in which that person has a personal interest or a direct or indirect pecuniary interest. Maximum penalty: $5 000. (8) Despite a preceding subsection, the Council may only delegate a power to act in relation to any matter within the Murray-Darling Basin with the approval of the Minister to whom the administration of the River Murray Act 2003 is committed. (9) Despite a preceding subsection, the Council may only delegate a power to act in relation to any matter within the Adelaide Dolphin Sanctuary with the approval of the Minister for the Adelaide Dolphin Sanctuary. 16—Staff (1) There must be a secretary to the Council and such other staff to assist the Council as the Minister thinks fit. (2) The secretary and other members of staff are to be Public Service employees. (3) The Council may, under an arrangement established by the Minister administering an administrative unit of the Public Service, make use of the services or staff of that administrative unit. 17—Annual report (1) On or before 31 October in each year, the Council must prepare and present to the Minister a report upon the administration of this Act during the year that ended on the preceding 30 June and must as part of that report, report upon the work of the Council in carrying out its functions and achieving the objects of this Act. (2) The report must set out the purposes for which money from the Fund was applied in the relevant year and the amount applied for each purpose and must explain why the Fund was applied in that manner. (3) The Minister must, within six sitting days after receiving a report presented under this section, cause copies of the report to be laid before both Houses of Parliament. Division 3—The Native Vegetation Fund 21—The Fund (1) The Native Vegetation Fund is established. (2) The Fund is subject to the management and control of the Council. (3) The Fund consists of— (a) money appropriated by Parliament for the purposes of the Fund; and (b) fees payable in respect of applications to the Council to clear native vegetation; and (c) amounts paid into the Fund in accordance with a condition under section 29(11)(d); and (ca) expiation fees and penalties recovered in respect of offences against this Act; and (cb) amounts paid into the Fund in accordance with an order under section 31A(6)(f) or (g); and (cc) amounts paid into the Fund in accordance with an order under section 31EA; and (cd) amounts paid into the Fund in accordance with any provision made by the regulations; and (d) interest and accretions arising from investment of the Fund. (3a) If an application to clear native vegetation is made to a local council or other body corporate or other person acting under delegation from the Council, the prescribed fee paid by the applicant under section 28(3)(b)(ii)(C) (excluding the fee prescribed for the report referred to in section 28(3)(b)(ii)(A)) may be retained by the local council or other body or person. (4) The Fund may, with the approval of the Minister, be invested in a manner determined by the Council. (5) The Council may make payments from the Fund in accordance with this Act. (6) Money paid into the Fund under subsection (3)(c), (ca), (cb), (cc) or (cd) must, as far as practicable, be used— (a) to preserve and maintain native vegetation on land that is within the same region of the State as the relevant land (including preserving and maintaining native vegetation referred to in paragraph (b)); or (b) to establish or regenerate native vegetation on land that is within the same region of the State as the relevant land and that has been selected by the Council for that purpose after having regard to the Regional Biodiversity Plan or Plans (if any) approved by the Minister that apply within that region. (6a) However, the Council may use the money referred to in subsection (6) to establish, regenerate or maintain native vegetation in a region of the State other than the region where the relevant land is located if— (a) the Council is satisfied that the environmental benefit to be achieved in the other region will outweigh the value of achieving a significant environmental benefit within the region where the relevant land is located; and (b) the native vegetation includes or supports— (i) plants of a rare, vulnerable or endangered species; or (ii) plants that provide habitat for rare, vulnerable or endangered species of native animals; or (iii) the whole, or a part, of a plant community that is rare, vulnerable or endangered; or (iv) a significant remnant of vegetation in an area which has been extensively cleared; and (c) the establishment, regeneration or maintenance of the native vegetation is carried out in accordance with guidelines adopted under section 25 that apply to such establishment, regeneration or maintenance. (6b) For the purposes of making an assessment under this section as to whether 2 or more places are within the same region of the State, the Council may take into account such matters as it thinks fit. (6c) To avoid doubt, nothing in this section prevents the Council from making a payment from the Fund to the person or body who paid the money into the Fund so that the person or body can establish, regenerate or maintain native vegetation in accordance with this Act. (7) In this section— relevant land means— (a) in a case where subsection (3)(c) applies—land that is to be cleared under the consent to which the relevant condition relates; (b) in a case where subsection (3)(ca), (cb) or (cc) applies—land on which the native vegetation involved in the offence or breach of the Act by virtue of which the relevant amount became payable was grown or was situated; (c) in a case where subsection (3)(cd) applies—land on which the native vegetation that is relevant to the operation of the particular regulation was grown or was situated. 22—Accounts and audit (1) The Council must keep proper accounts of receipts and payments in relation to the Fund. (2) The Auditor-General may at any time, and must at least once in each year, audit the accounts of the Fund. Part 4—Heritage agreements, proposals for revegetation and financial and other assistance Division 1—Heritage agreements 23—Heritage agreements (1) The Minister may enter into a heritage agreement with the owner of land— (a) where native vegetation is growing or situated and the Minister considers that provision should be made for the preservation or enhancement of the native vegetation; or (b) where the land has been re-vegetated with plants of one or more species indigenous to the local area so as to be representative of a naturally occurring plant community and the Minister considers, after having regard to the Regional Biodiversity Plan or Plans (if any) approved by the Minister, and associated pre-European vegetation mapping (if any) undertaken by the Minister, that apply in the vicinity of the relevant land, that provision should be made for the preservation or enhancement of that vegetation. (2) A heritage agreement attaches to the land and is binding on the current owner of the land whether or not that owner was the person with whom the agreement was made. (3) The Minister may, by agreement with the owner of the land to which a heritage agreement applies, vary or terminate the agreement. (4) A heritage agreement is, to the extent specified in the agreement, binding on the occupier of the land. (5) The Minister must not enter into, vary or terminate a heritage agreement under this section without first consulting and obtaining the approval of the Council. 23A—Effect of heritage agreement (1) A heritage agreement may contain any provision for the preservation or enhancement of native vegetation. (2) A heritage agreement may, for example— (a) restrict the use of land to which it applies; (b) require specified work or work of a specified kind to be carried out in accordance with specified standards on the land; (c) restrict the nature of work that may be carried out on the land; (d) provide for the management of the land, native vegetation on the land or any animals living on or visiting the land in accordance with a particular management plan or in accordance with management plans to be agreed from time to time between the Minister and the owner; (e) provide for remission of rates or taxes in respect of the land; (f) provide for the Minister to pay to the owner of the land an amount in respect of the decrease in the value of the land resulting from the execution of the heritage agreement and noting by the Registrar-General of the fact that it has come into force; (g) provide for the Minister to pay to the owner of the land an amount as an incentive to enter into the heritage agreement. (3) A term of a heritage agreement providing for the remission of rates or taxes has effect despite any law to the contrary. (4) The amount that the Minister agrees to pay in respect of the decrease in the value of the land referred to in subsection (2) must not exceed the amount of the decrease determined by the Valuer-General. (5) Any money required by the Minister to meet his or her obligations under a heritage agreement entered into under this section must be paid to the Minister from the Fund. 23B—Registration of heritage agreements (1) The Council must keep a register of heritage agreements entered into under this Act and must include in the register any agreement varying or terminating a heritage agreement. (2) The register must be kept available for public inspection at the office of the Council during ordinary office hours. (3) When the Minister enters into a heritage agreement, or an agreement varying or terminating a heritage agreement, the Registrar-General must, on application by the Minister or another party to the agreement, note the agreement against the relevant instrument of title or, in the case of land not under the Real Property Act 1886, against the land (and, subject to an appropriate application under this subsection, must ensure that the note is not removed once made). Division 2—Approval by the Council of proposal for revegetation 23D—Application of Division This Division applies to native vegetation if— (a) the Council has declared that this Division applies to the vegetation under section 23E; or (b) the vegetation is established pursuant to a proposal approved by the Council under section 23F. 23E—Declaration in relation to existing vegetation The Council may, on the application of the owner of land that has been revegetated with plants of one or more species indigenous to South Australia, declare that this Division applies to the vegetation if, in its opinion, the value of the vegetation is sufficient to warrant the application of the controls against clearance under Part 5. 23F—Proposal for revegetation of land An owner of land who wishes to revegetate the land with plants of one or more species indigenous to the local area that will be representative of a naturally occurring plant community may submit the proposal to the Council for approval. 23G—Information required on application or submission The landowner's application under section 23E or submission under section 23F must be in a form approved by the Council and must include, or be accompanied by, such information as the Council requires. 23H—Decision by the Council (1) If, in the opinion of the Council after having regard to the Regional Biodiversity Plan or Plans (if any) prepared by the Minister, and associated pre-European vegetation mapping (if any) undertaken by the Minister, that apply in the vicinity of the relevant land, and any other matter considered relevant by the Council, the value of the native vegetation referred to in section 23E or 23F is, or will be, sufficient to warrant application of the controls against clearance under Part 5, it may make a declaration in relation to the vegetation under section 23E or approve the proposal under section 23F. (2) The Council may, if it thinks it appropriate to do so, vary or revoke a declaration or approval made or given under this Division. 23I—Noting of Council's approval against the title to the land (1) Where the Council has made a declaration or given its approval under this Division, it must inform the Registrar-General in writing of the declaration or approval and must provide the Registrar-General with such further information as he or she requires to comply with subsection (3). (2) However, the Council need not proceed to inform the Registrar-General of an approval under section 23F until the Council is satisfied that it is appropriate to do so in accordance with the terms of the approval. (3) The Registrar-General must note the declaration or approval against the relevant instrument of title for the land or, in the case of land not under the Real Property Act 1886, against the land. (4) The Registrar-General must, on application by the Council after the making of a decision under section 23H(2), vary or cancel a note under subsection (3) (but must otherwise ensure that the note is not removed once made). Division 3—Financial and other assistance 24—Assistance to landowners (1) An owner of land that is subject to a heritage agreement may apply to the Council for financial or other assistance in— (a) managing the land, native vegetation on the land or any animals living on or visiting the land; (b) preserving or enhancing native vegetation on the land; (c) establishing native vegetation on the land; (d) undertaking research in relation to the preservation, enhancement or management of native vegetation on the land or of animals living on or visiting the land. (1a) An owner of land in relation to which a proposal has been approved by the Council under Division 2 may apply to the Council for financial assistance in establishing native vegetation on the land in accordance with the proposal. (2) An application must be in a form approved by the Council and must set out the applicant's proposals for the application of the assistance requested by the applicant. (3) The applicant's proposals must be based on guidelines adopted by the Council under this Part. (4) The Council may grant an application for assistance subject to such conditions as it thinks fit including, in the case of an application under subsection (1), the execution of an agreement varying the heritage agreement in a manner approved by the Council. (5) Money payable by way of financial assistance under this section must be paid from the Fund. (6) Where, in the opinion of the Council, a person to whom the Council has granted financial assistance under this section— (a) contravenes or fails to comply with a condition attached to the grant of the assistance; or (b) fails, within a reasonable time, to apply the amount granted for the purpose for which it was granted, the Council may serve written notice on that person demanding repayment of the amount granted or such lesser amount as is specified in the notice. (7) An amount demanded by the Council under subsection (6) is a debt due by the person from whom it is demanded to the Council and upon recovery must be paid by the Council into the Fund. (8) A court that is considering a claim for payment of a debt referred to in subsection (7) may refuse to order payment of all or part of the amount claimed if, in its opinion, the person to whom the financial assistance was granted has applied it in accordance with the conditions on which it was granted or in accordance with what he or she genuinely believed to be the conditions on which it was granted. 25—Guidelines for the application of assistance and the management of native vegetation (1) The Council must prepare draft guidelines in relation to— (a) the application of financial and other assistance provided by the Council; and (b) the management of native vegetation; and (ba) the establishment, regeneration or maintenance of native vegetation under section 21(6a); and (c) the operation of section 29(4a); and (d) clearing vegetation by the process commonly known as a cold burn; and (e) any other matter required by the regulations. (2) After preparation of the draft guidelines the Council must— (a) by public advertisement, invite members of the public to make representations to the Council (within a period of not less than two months following publication of the advertisement) as to matters that should be addressed by the guidelines; and (ab) submit the guidelines to the Minister for comment; and (b) submit the guidelines for comment by the regional landscape board for the landscape management region to which the guidelines relate; and (c) where the guidelines relate to pastoral land, submit the guidelines to the Pastoral Board for comment; and (e) where the guidelines relate to land within the area of a local council, submit the guidelines to the Local Government Association of South Australia for comment; and (f) submit the guidelines to Primary Producers SA Incorporated and to the Conservation Council of South Australia Incorporated for comment; and (g) where the guidelines relate to land within the Murray-Darling Basin, submit the guidelines to the Minister to whom the administration of the River Murray Act 2003 is committed for comment. (3) The public advertisement referred to in subsection (2)(a) must— (a) specify an address at which copies of the draft guidelines may be purchased or inspected; (b) specify an address to which representations in connection with the draft guidelines may be forwarded. (3a) Where the guidelines relate to land within the Murray-Darling Basin, the guidelines must seek to further the objects of the River Murray Act 2003 and the Objectives for a Healthy River Murray under the River Murray Act 2003 (insofar as they may be relevant). (3b) Where the guidelines relate to land within the Adelaide Dolphin Sanctuary, the guidelines must seek to further the objects and objectives of the Adelaide Dolphin Sanctuary Act 2005 (insofar as they may be relevant). (4) The Council may adopt the draft guidelines with, or without, amendment but must, before adopting them, consider all representations made by members of the public and comments made pursuant to subsection (2). (5) The Council must, by public advertisement, specify an address at which copies of guidelines adopted by the Council may be purchased or inspected. (5a) The Council may, by following the procedures required by this section for the preparation and adoption of the initial guidelines, prepare and adopt guidelines varying or replacing guidelines previously adopted under this section. (5b) Where the Council thinks it is desirable to take the time to consult on proposed guidelines in more detail than is required by this section, it may prepare and adopt guidelines under this section as an interim measure with the intention of varying or replacing them if necessary after it has had time for further consultation. (5c) For the purposes of this section, draft guidelines in relation to the application of financial and other assistance will only be taken to relate to a landscape management region, pastoral land, the Murray-Darling Basin or the Adelaide Dolphin Sanctuary if the guidelines explicitly state that they do. (6) In this section— public advertisement means an advertisement published in the Gazette and in a newspaper circulating throughout the State. Part 4A—Credit, assignment and third party establishment of environmental benefits 25A—Credit for environmental benefits (1) If— (a) a person— (i) has achieved an environmental benefit (not being a benefit required in relation to a consent to clear native vegetation or under any other requirement under this Act); or (ii) has, in accordance with a consent to clear native vegetation, achieved an environmental benefit that exceeds the value of the minimum benefit needed to offset the loss of the cleared vegetation; and (b) the Council is satisfied that the benefit or excess benefit (as the case requires) is of a significant value, the Council may, for the purposes of this Act— (c) credit the person with having achieved an environmental benefit of a value determined by the Council (whether monetary or otherwise); and (d) take into account and apply the value of the credit (adjusted to reflect the value, in the Council's opinion, of the native vegetation the subject of the credit at the time it is so applied) to— (i) an amount of environmental benefit the person must achieve; or (ii) an amount of compensation proposed to be paid into the Fund under section 28(4); or (iii) an amount to be paid into the Fund under any other provision of this Act as an alternative to achieving an environmental benefit. (2) In determining the value of an excess benefit contemplated by subsection (1)(a)(ii), the Council must have regard to the approximate difference between the value of the environmental benefit achieved by the person and the value of the environmental benefit that would, in the Council's opinion, have been the minimum the person would have been required to achieve in the circumstances. 25B—Assignment of credit (1) Subject to this section, a person credited under section 25A with having achieved an environmental benefit (the assignor) may, with the written approval of the Council, assign the whole or part of the credit to another person or body (the assignee). (2) An application for approval under subsection (1)— (a) must be made in a manner and form determined by the Council; and (b) must be accompanied by such information as the Council may reasonably require; and (c) must be accompanied by the prescribed fee. (3) The Council must not give its approval under subsection (1) unless the assignor has complied with any requirement of the Council to do 1 or more of the following: (a) enter into a heritage agreement in respect of the native vegetation that is the subject of the credit to be assigned; (b) enter into a management agreement under section 25D in respect of the native vegetation that is the subject of the credit to be assigned. (4) Before giving its approval under subsection (1), the Council must have regard to any Regional Biodiversity Plan or Plans approved by the Minister that apply within any region relevant to the application. (5) An approval may be conditional or unconditional. (6) A condition of an approval is binding on, and enforceable against— (a) the assignor; and (b) all owners and occupiers, and subsequent owners and occupiers, of the land on which the native vegetation that is the subject of the assigned credit is growing or situated. (7) The Council may, by notice in writing, vary or revoke a condition of an approval. (8) An approval remains in force for the period specified by the Council in the approval, or for such longer period as the Council may fix on application by the assignor or assignee. (9) The Council must inform the Registrar‑General in writing of all conditions imposed under this section that relate to land and must provide the Registrar‑General with such further information as the Registrar‑General requires to comply with subsection (10). (10) The Registrar‑General must note the conditions against the relevant instrument of title for the land or, in the case of land not under the Real Property Act 1886, against the land. (11) The Registrar‑General must, on the application of the Council after the variation or revocation of a condition under this section, vary or cancel a note under subsection (10) (but must otherwise ensure that the note is not removed once made). (12) For the purposes of this Act— (a) credit assigned under this section will be taken to be credit of the assignee; (b) an assignment of credit that contravenes this section is, unless the Council determines otherwise, void and of no effect. 25C—Achievement of environmental benefit by accredited third party provider (1) Subject to this section, a requirement under this Act that an environmental benefit be achieved by a person (the proponent) may, with the written approval of the Council, be satisfied by means of the achievement of the environmental benefit by an accredited third party provider. (2) An application for approval under subsection (1)— (a) must be made in a manner and form determined by the Council; and (b) must be accompanied by such information as the Council may reasonably require; and (c) must be accompanied by the prescribed fee. (3) The Council must not give its approval under subsection (1) unless the accredited third party provider— (a) has entered into a management agreement under section 25D in respect of the native vegetation comprising the environmental benefit; and (b) has complied with any other requirements prescribed by the regulations for the purposes of this section. (4) Before giving its approval under subsection (1), the Council must have regard to any Regional Biodiversity Plan or Plans approved by the Minister that apply within any region relevant to the application. (5) An approval may be conditional or unconditional. (6) A condition of an approval is binding on, and enforceable against— (a) the accredited third party provider; and (b) all owners and occupiers, and subsequent owners and occupiers, of the land on which the native vegetation comprising the environmental benefit is growing or situated. (7) The Council may, by notice in writing, vary or revoke a condition of an approval. (8) An approval remains in force for the period specified by the Council in the approval, or for such longer period as the Council may fix on application by the proponent or provider. (9) The Council must inform the Registrar‑General in writing of all conditions imposed under this section that relate to land and must provide the Registrar‑General with such further information as the Registrar‑General requires to comply with subsection (10). (10) The Registrar‑General must note the conditions against the relevant instrument of title for the land or, in the case of land not under the Real Property Act 1886, against the land. (11) The Registrar‑General must, on the application of the Council after the variation or revocation of a condition under this section, vary or cancel a note under subsection (10) (but must otherwise ensure that the note is not removed once made). (12) In this section— accredited third party provider means a person or body accredited for the purposes of this section in accordance with the regulations. 25D—Management agreements (1) The Minister may enter into a management agreement with— (a) an assignor of credit under section 25B; or (b) an accredited third party provider of an environmental benefit under section 25C. (2) A management agreement may contain such provisions for the management of the relevant native vegetation as the Minister thinks fit, including (without limiting the generality of this subsection)— (a) requiring specified work or work of a specified kind to be carried out in accordance with specified standards on the land on which the relevant native vegetation is growing or situated (the subject land); and (b) restricting the nature of work or other activities that may be carried out on the subject land. (3) A management agreement attaches to the subject land and is binding on the current owner of the subject land whether or not that owner was the person with whom the agreement was made. (4) The Minister may, by agreement with the owner of the subject land to which a management agreement applies, vary or terminate the agreement. (5) A management agreement is, to the extent specified in the agreement, binding on the occupier of the subject land. (6) The Minister must not enter into, vary or terminate a management agreement under this section without first consulting and obtaining the approval of the Council. (7) If the Minister enters into a management agreement, or an agreement varying or terminating a management agreement, the Registrar‑General must, on application by the Minister, note the agreement against the relevant instrument of title or, in the case of subject land not under the Real Property Act 1886, against the land (and, subject to an appropriate application under this subsection, must ensure that the note is not removed once made). (8) In this section— relevant native vegetation means the native vegetation that is the subject of credit assigned under section 25B or that comprises the environmental benefit achieved, or to be achieved, by the accredited third party provider under section 25C (as the case requires). 25E—Register (1) The Council must keep a register for the purposes of this Part. (2) The register must contain the information required by the regulations in relation to— (a) each credit under section 25A; and (b) each application of credit toward the matters contemplated by section 25A(1)(d); and (c) each assignment of credit under section 25B; and (d) each achievement of an environmental benefit by accredited third party providers under section 25C; and (e) each management agreement under section 25D, and may contain any other information the Council thinks fit. (3) The register must be kept available for public inspection, without fee, at the office of the Council during ordinary office hours. Part 5—Clearance and enforcement Division 1—Control of clearance 26—Offence of clearing native vegetation contrary to this Part (1) A person must not clear native vegetation unless the clearance is in accordance with this Part. Maximum penalty: A sum calculated at the prescribed rate for each hectare (or part of a hectare) of the land in relation to which the offence was committed or $100 000, whichever is greater. Expiation fee: $750. (2) A person must not contravene or fail to comply with a condition attached to a consent granted under this Part. Maximum penalty: A sum calculated at the prescribed rate for each hectare (or part of a hectare) of the land in relation to which the offence was committed or $100 000, whichever is greater. Expiation fee: $750. (2a) If a court convicts a person— (a) of an offence against subsection (1); or (b) of an offence against subsection (2) where the effect of the contravention of or failure to comply with the condition that constitutes the offence is that native vegetation has been cleared without the consent of the Council, the Council must, within the prescribed period, initiate civil proceedings under Division 2 in order to require the offender to make good the breach of this Act unless such proceedings have already been commenced, or an order has already been made, under that Division in relation to the matter, or the conviction is overturned on appeal. (3) In this section— land in relation to which the offence was committed means— (a) land on which the vegetation is or was growing or is or was situated; and (b) land that has been, or will be, affected in any way (including by an increase in its value) by reason of the commission of the offence; the prescribed period, in relation to the initiation of civil proceedings against an offender, means— (a) 6 months after the time within which the offender may appeal against the relevant conviction; or (b) if an appeal is commenced—6 months after— (i) the appeal is dismissed, struck out or withdrawn; or (ii) any questions raised by the appeal have been finally determined; the prescribed rate means— (a) the amount (if any) per hectare by which the land in relation to which the offence was committed has increased in value as a direct result of the commission of the offence; or (b) $2 500, whichever is the greater. (4) In determining the amount by which the value of land has increased as the result of the commission of an offence under this section, no account may be taken of the possibility that the establishment of vegetation on the cleared land may be ordered under Division 2. 27—Clearance of native vegetation (1) Subject to any other Act or law to the contrary— (a) native vegetation may, subject to this section, be cleared with the consent of the Council given in accordance with section 29; (b) native vegetation may, subject to subsection (5)(b), be cleared— (i) if the vegetation is of a prescribed class; or (ii) in prescribed circumstances; (c) native vegetation may, subject to subsection (5)(c), be cleared without any other restriction under this Act if the clearance falls within the ambit of subsection (4a). (2) Subject to subsection (3), the Council cannot give its consent to the clearance of native vegetation under subsection (1)(a) if the vegetation comprises or forms part of a stratum of native vegetation that is substantially intact (see section 3A). (3) The Council may, despite subsection (2) but subject to the other requirements of this Division, give its consent to the harvesting of native vegetation if, in its opinion, the harvesting will not result in any lasting damage to the plants comprising the vegetation, lead to significant soil damage or erosion, or result in any long-term loss of biodiversity. (4) The Council may give its consent under subsection (3) subject to such conditions (if any) as the Council thinks fit to impose. (4a) The clearance of native vegetation falls within the ambit of this subsection if— (a) the clearance occurs in the course of clearing vegetation by the process commonly known as a cold burn (being a cold burn conducted in accordance with any relevant guidelines adopted by the Council under section 25); or (b) the clearance is authorised by the relevant Chief Officer under subsection (4b). (4b) The relevant Chief Officer may authorise the clearance of native vegetation under this subsection if the Chief Officer considers— (a) that the clearance is reasonably necessary and appropriate for the purpose of protecting the life, health or safety of any person from a serious risk of bushfire after taking into account any guidelines developed by the Council after consultation with the Chief Officer of SACFS and the Chief Officer of SAMFS; and (b) that it is appropriate to proceed under this subsection rather than the other provisions of this Act due to the circumstances of the particular case. (4c) A Chief Officer may— (a) give an authorisation under subsection (4b) subject to such conditions (if any) as the Chief Officer thinks fit to impose; and (b) vary or revoke an authorisation under subsection (4b) due to a change in circumstances. (4d) A Chief Officer may only delegate a power under subsection (4b) or (4c) to a Deputy Chief Officer or Assistant Chief Officer of the relevant service. (5) Native vegetation that is growing or is situated on land that is subject to a heritage agreement under this Act, a heritage agreement that was entered into in compliance with a condition of consent to clear native vegetation under the repealed Act or a management agreement under section 25D cannot be cleared— (a) under subsection (1)(a) unless the Minister has also given his or her consent to the clearance; (b) under subsection (1)(b) unless a regulation prescribing a class of vegetation under paragraph (b)(i) or circumstances under paragraph (b)(ii) explicitly extends its operation to vegetation on land that is subject to such an agreement. (6) If the Minister attaches conditions to his or her consent under subsection (5)(a), the Council's consent to the clearance will be taken to be subject to the same conditions, in addition to any other conditions imposed by the Council. (7) In this section— Chief Officer means a Chief Officer of SACFS or a Chief Officer of SAMFS (as the case requires) and includes a person for the time being acting in the relevant office; fire‑control purposes—these are purposes associated with preventing or controlling the spread of fires or potential fires; relevant Chief Officer, in relation to an authorisation under subsection (4b), means— (a) if the relevant land is in a fire district established for the purposes of SAMFS—the Chief Officer of SAMFS; (b) in any other case—the Chief Officer of SACFS; SACFS means the South Australian Country Fire Service; SAMFS means the South Australian Metropolitan Fire Service. 28—Application for consent (1) Subject to subsection (2), the owner of land on which native vegetation is growing or is situated, or a person acting on his or her behalf, (but no other person) may apply for consent to clear the vegetation. (2) Where the land is held from the Crown under a miscellaneous lease, an application for consent to clear vegetation can only be made by the Minister for Environment and Conservation. (3) An application for consent— (a) must be in a form approved by the Council; (b) must be accompanied by— (i) — (A) if an environmental benefit required under this Act is to be satisfied by the application of a credit under section 25A— • if the credit has been assigned in accordance with section 25B—a management agreement prepared under section 25D; and • in any case— • information that establishes that the applicant has been credited, in accordance with section 25A or 25B, with having achieved an environmental benefit of a particular value; and • information that establishes that the environmental benefit the subject of the credit amounts, after allowing for the loss of the vegetation to be cleared, to a significant environmental benefit; or (B) if an environmental benefit required under this Act has been, or is to be, achieved by an accredited third party provider in accordance with section 25C— • a management agreement prepared under section 25D; and • information that establishes that the environmental benefit achieved, or to be achieved, by the accredited third party provider will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or (C) if an environmental benefit required under this Act is to be achieved in any other way— • a native vegetation management plan prepared by the applicant in accordance with guidelines adopted by the Council under Part 4; and • information that establishes that subsequent establishment, regeneration or maintenance of native vegetation (whether on the land after the proposed clearance or on other land) in accordance with the native vegetation management plan will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or (D) information that establishes that it is not possible for the applicant to achieve a significant environmental benefit in the manner contemplated by subsubparagraph (C); and (ii) in any case— (A) the prescribed number of copies of a report relating to the proposed clearance prepared in a form approved by the Council; and (B) such other information as the Council reasonably requires; and (C) the prescribed fee (including the fee prescribed for the report referred to in subsubparagraph (A)). (4) Where an applicant provides information referred to in subsection (3)(b)(i)(D), he or she may propose that he or she make a payment into the Fund to compensate for the fact that there will not be a significant environmental benefit associated with the proposed clearance. (5) The report referred to in subsection (3)(b)(ii)(A) must be prepared by the agency or instrumentality of the Crown or other person or body specified by the regulations. (6) On receipt of the fee prescribed for the report referred to in subsection (3)(b)(ii)(A), the Council (or a local council or other body or person acting under delegation from the Council) must pay the amount of the fee to the Minister who must apply the amount received towards the cost of administering this Act. (7) The Council must ensure that a copy of the report referred to in subsection (3)(b)(ii)(A), and of any Assessment Report prepared by the Minister's department in response to the making of an application under this section, is available for inspection, without fee, during ordinary office hours at the principal office of the Council, and is also available in any other manner, or at any other place, determined by the Minister. 29—Provisions relating to consent (1) Subject to this section, in deciding whether to consent to an application to clear native vegetation, the Council— (a) must have regard to the principles of clearance of native vegetation so far as they are relevant to that decision; and (b) must not make a decision that is seriously at variance with those principles. (2) When determining an application to clear native vegetation in order to facilitate the management of other native vegetation, the Council must, in exercising its limited discretion under subsection (1), have regard to the applicant's desire to facilitate the management of that other vegetation. (3) When determining an application to clear native vegetation that is growing or is situated