Part 4Native plants

Part 4—Native plants Division 1—Preliminary 42—Regulated acts or activities (1) For the purposes of this Part, the following acts or activities are regulated acts or activities: (a) clearance of native plants of a relevant kind on land (whether public land or otherwise) within the regulated clearance area or on public land outside the regulated clearance area; (b) clearance of native plants on land that is subject to a biodiversity agreement; (c) taking a native plant of a relevant kind from public land; (d) taking a native plant of a prescribed species; (e) dealing with a native plant of a prescribed species; (f) an act or activity prescribed by the regulations for the purposes of this subsection that relates to native plants; (g) attempting, assisting in, or taking part in the process of an act or activity referred to in a preceding paragraph. (2) Despite subsection (1), for the purposes of this Part, the acts and activities specified in Schedule 2 as amended from time to time by regulation are not regulated acts or activities if carried out or undertaken in accordance with any requirements, and subject to any restrictions, set out in that Schedule. However, see also Part 6 Division 5 in relation to requirements in respect of critical habitat features of critical habitat (which may comprise or constitute native plants). 43—Clearing and taking of plants by Aboriginal persons (1) This section does not apply to the clearance or taking of— (a) a plant of a prescribed species; or (b) a plant by a prescribed means or in prescribed circumstances. (2) Nothing in this Part prevents an Aboriginal person from clearing or taking a native plant for the purposes of using the plant for a non‑commercial cultural or spiritual practice (which may include using the plant as food in the course of that practice). In clearing or taking a plant in accordance with this section, an Aboriginal person is subject to laws of general application. 44—Declaration to clear and take certain native plants (1) The Minister may, by notice in the Gazette, declare that native plants of a specified species that are not indigenous to the State may be cleared or taken, or both cleared and taken. (2) A notice under this section— (a) must not relate to plants of a threatened species; and (b) does not apply in relation to plants that comprise a threatened ecological community or comprise or constitute a critical habitat feature of critical habitat; and (c) may only be made if the Minister is satisfied that the clearing or taking of the species at levels that could reasonably be expected as a result of the declaration would not reasonably cause the species to be considered for assessment as a threatened species in accordance with Part 6. (3) A notice under this section— (a) must state— (i) the period (if any) during which the plants may be cleared or taken; and (ii) the parts of the State to which the declaration applies or that the declaration applies to the whole State (as the case may be); and (b) may prescribe restrictions or conditions applicable to the declaration. (4) The Minister must publish a statement of reasons for a declaration under this section on the Biodiversity Register within 30 days after the notice making the declaration is published in the Gazette. (5) It is lawful to clear or take a native plant in accordance with a notice under this section. Division 2—Offences 45—Offence to carry out or undertake regulated act or activity without authorisation Subject to this Act, a person must not carry out or undertake a regulated act or activity unless the person is taken to hold an authorisation under section 48 authorising the person to carry out or undertake the regulated act or activity. (a) in the case of a body corporate—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 $1 000 000, whichever is greater; (b) in the case of an individual— (i) 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 $500 000, whichever is greater; or (ii) imprisonment for 5 years. 46—Contravention of condition of consent A person must not contravene a condition attached to a consent given under Division 3 that is held by the person. (a) in the case of a body corporate—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 $1 000 000, whichever is greater; (b) in the case of an individual— (i) 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 $500 000, whichever is greater; or (ii) imprisonment for 5 years. Expiation fee: $1 500. 47—Illegal possession of native plants A person must not have in their possession or control a native plant that has been illegally taken or acquired. (a) in the case of a body corporate—$500 000; (b) in the case of an individual—$250 000 or imprisonment for 5 years. Division 3—Authorisation 48—Authorisation to carry out or undertake regulated act or activity (1) For the purposes of this Part, a person is taken to hold an authorisation to carry out or undertake a regulated act or activity if— (a) in the case of clearance of native plants— (i) subject to section 56, the person has been given consent by the CAC in accordance with this Division to carry out or undertake the clearance; or (ii) the clearance is carried out or undertaken in prescribed circumstances; or (b) in the case of taking or dealing with native plants—the person has been granted a permit by the Minister under Part 9 to carry out or undertake the act or activity; or (c) in the case of an act or activity prescribed by the regulations for the purposes of section 42(1)—the person has been given any authorisation required by the regulations to carry out or undertake the act or activity. (2) If a person who is (apart from this subsection) taken to hold an authorisation to carry out or undertake a regulated act or activity in accordance with this section fails to carry out or undertake the regulated act or activity in accordance with the consent, permit or authorisation required by the regulations (as the case requires), the person is taken not to hold the authorisation. 49—Application for consent (1) An application for consent to clear native plants may be made by any person. (2) An application for consent to clear native plants must be made in a manner and form approved by the CAC and must be accompanied by— (a) a report relating to the proposed clearance— (i) prepared by a person; and (ii) in a form, approved by the CAC; and (b) information about how the applicant has applied the mitigation hierarchy in accordance with Council guidelines made for that purpose; and (c) such information as may be required by the CAC that establishes that— (i) a significant environmental benefit has been, or will be, achieved in accordance with the requirements of the SEB policy; or (ii) it is not reasonable or practicable for the applicant to achieve a significant environmental benefit in accordance with the requirements of the SEB policy; and (d) such other information as the CAC reasonably requires; and (e) the prescribed fee. (3) The CAC may, following receipt of an application under this section, request the applicant to provide such additional documents or information as the CAC may reasonably require to assess the application. (4) Without limiting the content of the report referred to in subsection (2)(a), that report must establish the category of the clearance in accordance with Council guidelines about categorising levels of clearance. (5) The CAC must cause a copy of the report referred to in subsection (2)(a), and a copy of any assessment report prepared by the Department in response to the making of an application under this section, to be published on the Biodiversity Register. (6) If an applicant provides information referred to in subsection (2)(c)(ii), the applicant must propose that they make a payment into the Biodiversity Restoration Fund in lieu of achieving a significant environmental benefit in relation to the proposed clearance. (7) A person may, at any time, make an application for clearance in relation to native plants, or land on which native plants are growing or situated, in respect of which an application for clearance has previously been made. 50—Matters CAC must have regard to when determining application (1) Subject to this Division, in deciding whether to consent to an application to clear native plants, the CAC must— (a) be satisfied that the mitigation hierarchy has been applied in respect of the proposed clearance in accordance with Council guidelines made for that purpose; and (b) have regard to the principles of preservation of native plants in so far as they are relevant to that decision; and (c) consider the potential cumulative impact, both direct and indirect, that is reasonably likely to result from the proposed clearance in accordance with Council guidelines made for that purpose. (2) When determining an application to clear native plants that are growing or situated on land that forms part of a property that is used for the business of primary production, the CAC must, in exercising its limited discretion under subsection (1), have regard to the applicant's desire to operate the business as efficiently as possible. (3) When determining an application to clear native plants, the CAC must have regard to the principle that such plants should not be cleared if, in the opinion of the CAC— (a) the land on which the plants are growing or situated will be used for a particular purpose after the clearance; and (b) the regional landscape board for the landscape management region where the land is situated has, as part of its regional landscape plan under the Landscape South Australia Act 2019, assessed— (i) the capability and preferred uses of the land; and (ii) the condition of the land; and (c) according to that assessment the use of the land for that purpose cannot be sustained. 51—Circumstances in which consent may be given etc (1) Subject to subsection (2), the CAC cannot give its consent to the clearance of native plants under this Division if the plants contain, or are constituted of, a stratum of native plants that is substantially intact. (2) The CAC may, despite subsection (1), but subject to the other requirements of this Division, give its consent in accordance with this section to the clearance of native plants in specified circumstances. (3) Subject to subsection (4), if the applicant proposes that they make a payment into the Biodiversity Restoration Fund as contemplated by section 49(6), the CAC cannot give its consent to the clearance of native plants unless the CAC is satisfied that it is not reasonable or practicable for the applicant to achieve a significant environmental benefit in accordance with the requirements of the SEB policy. (4) Subsection (3) does not apply to a clearance that is determined to be a small scale clearance in accordance with Council guidelines about categorising levels of clearance. (5) Subject to subsection (7), in deciding whether to consent to an application to clear native plants, the CAC must not make a decision that is seriously at variance with the principles of preservation of native plants. (6) For the purposes of subsection (5), whether a decision is seriously at variance with the principles of preservation of native plants is to be determined in accordance with Council guidelines made for that purpose. (7) The CAC may give its consent to the clearance of native plants in contravention of subsection (5) if the particular circumstances justify the giving of consent and— (a) the CAC is satisfied that a significant environmental benefit has been, or will be, achieved in accordance with the requirements of the SEB policy; or (b) if the clearance is in specified circumstances and the CAC is satisfied that it is not reasonable or practicable for the applicant to achieve a significant environmental benefit in accordance with the requirements of the SEB policy—the CAC attaches to the consent conditions in accordance with section 53(1)(b). (8) The CAC may give its consent to clearance of native plants under this section only if— (a) the CAC is satisfied that a significant environmental benefit has been, or will be, achieved in accordance with the requirements of the SEB policy; or (b) if the CAC is satisfied that it is not reasonable or practicable for the applicant to achieve a significant environmental benefit in accordance with the requirements of the SEB policy—the CAC attaches to the consent a condition in accordance with section 53(1)(b). (9) If the clearance that is the subject of the application under this Division relates to a native plant that is a critical habitat feature of critical habitat and is, in the opinion of the CAC, likely to negatively impact on, or hinder the recovery of, the threatened species, threatened ecological community or listed ecological entity that was the basis for the habitat's eligibility to be declared as critical habitat, the CAC must not give consent unless satisfied that the negative impact or hindrance cannot be avoided or further mitigated and— (a) that the applicant has carried out or undertaken, or caused to be carried out or undertaken, an act or activity that the CAC is satisfied has offset any residual negative impacts or hindrance to positively impact on the recovery of the threatened species, threatened ecological community or listed ecological entity (as the case may be); or (b) that the applicant proposes to carry out or undertake, or cause to be carried out or undertaken, an act or activity that the CAC is satisfied will offset any residual negative impacts or hindrance to positively impact on the recovery of the threatened species, threatened ecological community or listed ecological entity (as the case may be). (10) For the purposes of subsection (9), the CAC may not consider payment into a fund as an act or activity which offsets any residual negative impacts or hindrance caused by the clearance. (11) For the purposes of this section, the following are specified circumstances: (a) clearance of native plants incidental to work being undertaken by or on behalf of the Commissioner of Highways; (b) subject to subsection (12), clearance of native plants required in order to erect a prescribed building or other facility that is ancillary to a prescribed building, provided that any development authorisation required by or under the Planning, Development and Infrastructure Act 2016 has been obtained; (c) clearance of native plants required in connection with the provision of infrastructure (including, to avoid doubt, renewable energy infrastructure within the meaning of the Hydrogen and Renewable Energy Act 2023), provided that any development authorisation required by or under the Planning, Development and Infrastructure Act 2016 has been obtained; (d) clearance of native plants required in connection with the division of land for use for residential purposes (including clearance for the construction of infrastructure), provided that any development authorisation required by or under the Planning, Development and Infrastructure Act 2016 has been obtained; (e) clearance of native plants for the purposes of establishing or maintaining a track for recreational activity involving pedestrians, bicycles or horses; (f) clearance of native plants for the purposes of establishing or widening a track that is more than 5 m in width and reasonably required to provide access for commercial purposes by vehicles having at least 4 wheels, other than clearance on a road reserve, rail corridor or rail reserve; (g) clearance of native plants incidental to the lawful construction or expansion of a dam situated on pastoral land. (12) Subsection (11)(b) does not apply to clearance of native plants undertaken in connection with subdivision of the land on which the plants are growing or situated. 52—Consultation and representations (1) The CAC must, before giving its consent under this Division— (a) consult the regional landscape board for the landscape management region in which the native plants are situated and have regard to the board's recommendations (if any) in relation to the application; and (b) in the case of an application relating to clearance of native plants on pastoral land, consult the Pastoral Board and have regard to the Board's recommendations (if any) in relation to the application; and (c) in the case of an application relating to clearance of native plants within a River Murray Protection Area, consult the Minister responsible for the administration of the River Murray Act 2003 and comply with that Minister's directions (if any) in relation to the application; and (d) in the case of an application relating to clearance of native plants within the Adelaide Dolphin Sanctuary that is within a class of applications prescribed by the regulations for the purposes of this paragraph, consult the Minister responsible for the administration of the Adelaide Dolphin Sanctuary Act 2005 and— (i) in the case of an application relating to native plants that are mangroves—comply with that Minister's directions (if any) in relation to the application; or (ii) in any other case—have regard to the views of that Minister in relation to the application. (2) The CAC must allow any person who desires to do so to make representations in writing to the CAC in relation to an application to clear native plants within the period of 28 days from the day on which the application is received by the CAC. (3) The CAC may, as it thinks fit, allow a person to appear personally or by representative before it to be heard on whether the CAC should or should not consent to an application to clear native plants. 53—Conditions of consent (1) A consent under this Division to the clearance of native plants is subject to such conditions as the CAC thinks fit to impose or as may be imposed by or under this or another provision of this Act and— (a) if the CAC determines a significant environmental benefit is to be achieved in accordance with the requirements of the SEB policy— (i) such conditions as the CAC thinks fit to ensure that a significant environmental benefit will be achieved in accordance with the requirements of the SEB policy; and (ii) a condition that any measures taken, actions undertaken or requirements complied with to achieve the significant environmental benefit are taken, undertaken or complied with in accordance with a biodiversity management plan; and (iii) if the land on, or in relation to, which a significant environmental benefit will be achieved is not subject to a biodiversity agreement on such terms as the CAC thinks fit—a condition requiring that such an agreement be entered into before the clearance is undertaken; or (b) if the CAC is satisfied that it is not reasonable or practicable for the applicant to achieve a significant environmental benefit in accordance with the requirements of the SEB policy— (i) if the CAC considers it is appropriate in the circumstances—such conditions as the CAC thinks fit to ensure an environmental benefit will be achieved; and (ii) a condition requiring the applicant to make a payment into the Biodiversity Restoration Fund of an amount considered by the CAC to be sufficient to achieve the significant environmental benefit that would otherwise be required by the SEB policy, after taking into account any environmental benefit that would be achieved by compliance with a condition referred to in subparagraph (i). (2) Without limiting subsection (1), consent may be subject to 1 or more of the following conditions: (a) a condition that the clearance be undertaken by the owner of the land on which the clearance is to be undertaken or a person authorised by the owner of the land to undertake the clearance; (b) a condition requiring the applicant to— (i) establish a specified number of plants of a specified species on specified land, or cause such plants to be established; and (ii) nurture, protect and maintain the plants, or cause the plants to be nurtured, protected and maintained, until they are fully established or for such period as the CAC specifies; (c) a condition requiring the applicant to protect native plants growing or situated on specified land, or to cause such plants to be protected; (d) a condition restricting the purposes for which land referred to in a condition under paragraph (b)(i) or (c) can be used; (e) a condition requiring the applicant to destroy plants of a specified species growing on specified land, or to cause such plants to be destroyed; (f) a condition requiring the applicant to pay into the Biodiversity Administration Fund an amount determined by the CAC to support the administration, monitoring and enforcement of measures, actions or requirements that relate to the satisfaction of a requirement to achieve a significant environmental benefit in relation to the clearance of native plants. (3) If the applicant has, in accordance with section 51(9)(b), proposed to carry out or undertake, or cause to be carried out or undertaken, an act or activity to offset any residual negative impacts or hindrance caused by the clearance, the CAC must attach a condition to the consent requiring that the proposed act or activity be achieved. (4) Conditions imposed on consent to clear native plants are binding on, and enforceable against— (a) the holder of the consent; and (b) the owner, and any subsequent owner, of the land to be cleared and any other land to which a condition relates; and (c) an occupier of the land to be cleared and any other person who acquires the benefit of the consent. (5) The CAC must inform the Registrar‑General of all conditions imposed under this section that relate to land (including conditions under subsection (2)(d)) in accordance with section 170. 54—Assignment of consent (1) The CAC may, on application, assign a consent to undertake clearance under this Division to another person. (2) An application for the assignment of a consent under this section must be made in a manner and form approved by the CAC. (3) A consent assigned under subsection (1) is subject to the same conditions to which it was subject immediately before it was assigned. (4) If the CAC assigns a consent under subsection (1), the person to whom it is assigned becomes the holder of the consent. 55—Other matters relating to consents (1) Consent to undertake clearance under this Division must be given in writing and remains in force for 2 years or for such longer period (which must not be more than 5 years after the consent is given) as the CAC may fix at the time of giving consent or subsequently on application by a person who has the benefit of the consent. (2) If, following the giving of a consent to undertake clearance under this Division, the CAC becomes aware that information in, or provided in support of, the application for consent was incorrect or incomplete, the CAC may, by notice in writing to the holder of the consent— (a) vary the consent (including by varying or removing conditions of the consent or by imposing additional conditions) to reflect the consent that would have been given had the CAC been aware of the correct or complete information at the time the application was determined; or (b) revoke the consent if the application would have been refused had the CAC been aware of the correct or complete information at the time the application was determined. (3) The CAC must observe the rules of natural justice when considering and determining an application for consent under this Division. (4) The CAC must provide the applicant with a written statement of the reasons for its decision under this Division. (5) The CAC must cause its decisions and statements of reasons under this Division to be published on the Biodiversity Register. 56—Consent of Minister required if biodiversity agreement applies (1) Subject to subsection (2), native plants that are growing or situated on land that is subject to a biodiversity agreement cannot be cleared unless the Minister has also given consent to the clearance (whether conditional or unconditional). (2) Subsection (1) does not apply if the biodiversity agreement allows the clearance to be undertaken. (3) If the Minister attaches conditions to their consent under subsection (1), the CAC's consent to the clearance will be taken to be subject to the same conditions, in addition to any other conditions imposed by the CAC. 57—Application of Division if referral under Planning, Development and Infrastructure Act (1) Sections 50 and section 51(5) to (10) (inclusive) also apply to circumstances where the CAC is considering a development application referred to it under the Planning, Development and Infrastructure Act 2016 as if the CAC were considering an application for consent under this Act, subject to such modifications, additions or exclusions as the CAC considers may be necessary for the purpose. (2) Subsection (1) does not limit the matters that the CAC may take into account in considering such an application. 58—Avoidance of duplication of procedures etc (1) The purpose of this section is to provide for the avoidance of unnecessary duplication of procedures and compliance requirements under the Commonwealth Act and this Act where the clearance of native plants requires consent under this Act and approval under the Commonwealth Act. (2) Despite any other provision of this Act, the CAC may— (a) accept a Commonwealth Act document as an application for consent under section 49 if (subject to subsection (5)) it complies with the requirements of this Act; and (b) accept the whole or part of a plan, report, statement, assessment or other document used, or to be used, for the purposes of the Commonwealth Act as a biodiversity management plan required to be provided in relation to an application for consent to clear native plants if (subject to subsection (5)) the document has been prepared in compliance with this Act and complies with the requirements of this Act. (3) To avoid doubt, where a controlled action under the Commonwealth Act comprises or includes the clearance of native plants, the CAC may, when considering an application for consent to clear the native plants, use information and other material provided to the Commonwealth Minister under the Commonwealth Act for the purpose of deciding whether to give their approval to the controlled action under that Act. (4) If a controlled action under the Commonwealth Act comprises or includes the clearance of native plants, the CAC— (a) must, if the Commonwealth Minister has given their approval to the controlled action, consider whether the conditions (if any) to be imposed on the consent should be consistent with the conditions (if any) attached to the Commonwealth Minister's approval under the Commonwealth Act; and (b) may impose a condition on the consent that requires compliance with all or some of the conditions attached to the Commonwealth Minister's approval under the Commonwealth Act. (5) A document accepted under subsection (2)— (a) may be in a form that does not comply with the requirements of this Act; and (b) may include information or other material that is irrelevant for the purposes of this Act. (6) Once a document is accepted under subsection (2) the document will not be invalid or ineffective for the purposes of this Act because a court, tribunal or other authority has decided that it is invalid or ineffective for the purposes of the Commonwealth Act. (7) In this section— assessment report means— (a) an assessment report as defined in the Commonwealth Act by reference to section 84(3), 95, 100 or 105 of that Act; or (b) a report under section 121 of the Commonwealth Act; Commonwealth Act means the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth; Commonwealth Act document means any document required under the Commonwealth Act for the purposes of approval under that Act.