Sch 2Native plants—regulated acts or activities exclusions

Schedule 2—Native plants—regulated acts or activities exclusions 1—Interpretation In this Schedule— approved form means a form approved by the CAC; bushfire management plan means— (a) a plan prepared by a bushfire management committee for its bushfire management area as required under sections 73 and 73A of the Fire and Emergency Services Act 2005; or (b) a plan for reducing the risk of bushfires approved by the CAC or developed in accordance with Council guidelines; commercial forest means a forest plantation where the forest vegetation is grown or maintained so that it can be harvested or used for commercial purposes; Cultana Training Area means the area declared to be the Cultana Training Area from time to time under the Defence Regulation 2016 of the Commonwealth; designated Act means— (a) the Energy Resources Act 2000; or (b) the Mining Act 1971; or (c) the Offshore Minerals Act 2000; or (d) the Opal Mining Act 1995; or (e) the Roxby Downs (Indenture Ratification) Act 1982; dwelling means a prescribed building or part of a prescribed building used as a self‑contained residence; farm forest means an area of private land on which the cultivation and management of native plants (whether for commercial or non‑commercial purposes) is integrated with other activities and includes timber plantations, planted timber belts (including planted windbreaks), planted woodlots and wide‑spaced tree plantings; fence means a fence consisting of posts and wire fixed permanently to land and designed for the purposes of controlling access by people or the movement of animals; fire access track means a track constructed for use by vehicles undertaking firefighting activities; firefighting has the same meaning as in the Fire and Emergency Services Act 2005; forest vegetation means trees and other forms of forest vegetation including— (a) roots or other parts of the trees or other forest vegetation that lie beneath the soil; and (b) leaves, branches or other parts or products of trees or other forest vegetation; infrastructure includes social infrastructure; plant health expert means a person holding a prescribed qualification; private mine means land declared under the Mining Act 1971 to be a private mine; relevant Chief Officer means— (a) if the relevant land is in a fire district established for the purposes of SAMFS—the Chief Officer of SAMFS; or (b) in any other case—the Chief Officer of SACFS; repealed regulations means the Native Vegetation Regulations 2003 or the Native Vegetation Regulations 2017; River Murray Floodplain Area means the River Murray Protection Area so designated under regulation 4 of the River Murray Regulations 2017; rural council has the same meaning as in the Fire and Emergency Services Act 2005; SACFS means the South Australian Country Fire Service; SAMFS means the South Australian Metropolitan Fire Service; SASES means the South Australian State Emergency Service; social infrastructure means buildings or areas that facilitate the delivery of social services; social services include health services, disability services, aged care, childcare, education, justice and emergency services, arts and culture, sport and recreation, social housing and any other service provided for community benefit. 2—Operation of Schedule (1) The acts and activities set out in Part 2 to Part 4 of this Schedule are specified as not being regulated acts or activities for the purposes of section 42(2). (2) A person carrying out or undertaking, or intending to carry out or undertake, an act or activity set out in this Schedule must comply with any applicable Council guidelines. (3) A person clearing, or intending to clear, native plants in circumstances set out in this Schedule must— (a) have applied the mitigation hierarchy in accordance with Council guidelines adopted for that purpose; and (b) if the CAC must be notified of the proposed clearance—include in the notification an explanation of how the person has applied the mitigation hierarchy. (4) The operation of this Schedule extends to native plants that— (a) are growing or situated on land that is subject to a biodiversity agreement unless a clause in this Schedule specifies that it does not apply to such plants; or (b) are growing or situated on land within a conservation area established under section 97 unless a clause in this Schedule specifies that it does not apply to such plants. Part 2—Clearance or taking of native plants Division 1—Intentionally sown or planted native plants 3—Intentionally sown or planted native plants Clearance or taking of a native plant that was intentionally sown or planted by a person unless the plant— (a) was sown or planted— (i) in compliance with a condition imposed by the CAC under this Act or by the Native Vegetation Council or the Native Vegetation Authority under a repealed Act, or with the order of a court under this Act or a repealed Act; or (ii) in accordance with a proposal approved by the Native Vegetation Council under Part 4 Division 2 of the repealed Native Vegetation Act 1991; or (iii) on land that is subject to a biodiversity agreement; or (iv) in circumstances involving the use of money paid into the Biodiversity Restoration Fund in relation to a requirement to achieve a significant environmental benefit; or (v) 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) the Natural Resources Management Act 2004; or (D) the Landscape South Australia Act 2019; or (E) any other Act prescribed by the regulations for the purposes of this paragraph; or (b) is more than 20 years old and is not— (i) growing in a commercial forest, farm forest or domestic garden; or (ii) growing for the purposes of commercial floriculture; or (c) is growing or situated on public land. Division 2—Maintaining existing developments and infrastructure 4—Native plants within 3 m of prescribed building (1) Clearance or taking of native plants that are growing or situated within 3 m of an existing prescribed building that is on the same land as the land on which the native plants are growing or situated. (a) native plants that are growing or situated on land within the River Murray Floodplain Area unless the clearance or taking— (i) involves the limb of a plant that is overhanging a prescribed building; and (ii) is confined to removing the limb (or a part of the limb to any point up to the trunk of the plant); or (b) clearance or taking of native plants undertaken in connection with subdivision of the land on which the plants are growing or situated. 5—Maintenance of infrastructure Clearance or taking of native plants if the clearance or taking is incidental to the repair or maintenance of infrastructure and— (a) the native plants to be cleared or taken— (i) are located in the vicinity of the infrastructure that is being repaired or maintained— (A) in the case of clearance—in an area in which native plants were previously lawfully cleared in connection with the construction, repair or maintenance of the infrastructure; or (B) in the case of taking—in an area in which native plants were previously lawfully cleared or taken in connection with the construction, repair or maintenance of the infrastructure; and (ii) consist only of native plants or parts of native plants that have grown or regrown since that earlier clearance or taking; or (b) the clearance or taking is undertaken in accordance with Council guidelines relating to clearance or taking of that kind. 6—Maintenance of dam (a) the clearance or taking is incidental to the repair or maintenance of an existing dam; and (b) the native plants to be cleared or taken— (i) are located in the vicinity of the dam— (A) in the case of clearance—in an area in which native plants were previously lawfully cleared in connection with the construction, repair or maintenance of the dam; or (B) in the case of taking—in an area in which native plants were previously lawfully cleared or taken in connection with the construction, repair or maintenance of the dam; and (ii) consist only of native plants or parts of native plants that have grown or regrown since that earlier clearance or taking. (2) Subclause (1) does not apply to native plants that are growing or situated on land that is subject to a biodiversity agreement. 7—Clearance or taking under Electricity Act 1996 Clearance or taking of native plants— (a) undertaken as part of a duty under Part 5 of the Electricity Act 1996; or (b) incidental to any repair or maintenance work undertaken by an electricity entity within the meaning of the Electricity Act 1996. 8—Roadside or rail corridor plant management (1) Clearance or taking of native plants growing or situated on land comprising a road reserve, rail corridor, rail reserve or railway crossing undertaken by or on behalf of the person with the control and management of the land for the purposes of— (a) ensuring the safety of persons entering or passing the land or of property on the land; or (b) controlling pests on the land, if the clearance or taking is undertaken in accordance with Council guidelines relating to clearance or taking of that kind. (2) Subclause (1) does not apply to native plants that are growing or situated on land that is subject to a biodiversity agreement. Division 3—New developments and infrastructure 9—Impact assessed development (1) Clearance or taking of native plants that is incidental to a proposed development to which Part 7 Division 2 Subdivision 4 of the Planning, Development and Infrastructure Act 2016 applies if— (a) an EIS and an Assessment Report relating to the development have been prepared under the Planning, Development and Infrastructure Act 2016; and (b) the Planning Minister referred the EIS to the CAC for comment and report and— (i) the CAC provided comments that were included (wholly or substantially) in the relevant Assessment Report; or (ii) the CAC failed to provide comments within 8 weeks after receiving the Minister's invitation for comment and report; and (c) the Planning Minister has consented to the proposed development under section 115 of the Planning, Development and Infrastructure Act 2016; and (d) the clearance or taking is undertaken in accordance with the consent granted for the proposed development; and (e) in the case of clearance of native plants—the clearance is undertaken in accordance with a biodiversity management plan that proposes that a significant environmental benefit be achieved in accordance with the requirements of the SEB policy. (2) Subclause (1)(e) does not apply if the owner of the land (or a person acting on the owner's behalf) has made 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. (3) Subclause (1) does not apply to native plants that are growing or situated on land that is subject to a biodiversity agreement. 10—Infrastructure (1) Clearance or taking 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) if— (a) any development authorisation required by or under the Planning, Development and Infrastructure Act 2016 has been obtained; and (b) the clearance or taking is undertaken in accordance with Council guidelines relating to clearance or taking of that kind; and (c) in the case of clearance of native plants in the regulated clearance area—the clearance is undertaken in accordance with a biodiversity management plan that proposes that a significant environmental benefit be achieved in accordance with the requirements of the SEB policy. (2) Subclause (1)(c) does not apply if the person undertaking the clearance (or a person acting on the person's behalf) has made 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. (3) Subclause (1) does not apply to native plants that are growing or situated on land that is subject to a biodiversity agreement. 11—Works on behalf of Commissioner of Highways (a) the clearance or taking is incidental to work being undertaken by or on behalf of the Commissioner of Highways (other than repair or maintenance work of a kind referred to in clause 5); and (b) the clearance or taking is undertaken in accordance with Council guidelines relating to clearance or taking of that kind; and (c) in the case of clearance of native plants in the regulated clearance area—the clearance is undertaken in accordance with a biodiversity management plan that proposes that a significant environmental benefit be achieved in accordance with the requirements of the SEB policy. (2) Subclause (1)(c) does not apply if the person undertaking the clearance (or a person acting on the person's behalf) has made 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. (3) Subclause (1) does not apply to native plants that are growing or situated on land that is subject to a biodiversity agreement. Division 4—Tracks and fences 12—Pedestrian tracks on private land (1) Clearance or taking of native plants on private land for the purposes of establishing or maintaining a track of not more than 0.5 m in width that— (a) is used, or is genuinely expected to be used, only by pedestrians; and (b) is on private land; and (c) is not, or is not intended to be, available for use by members of the public. (a) clearance or taking of native plants established as a condition of a consent for clearance of native plants under this Act or a consent for clearance of native vegetation under a repealed Act; or (b) clearance or taking of native plants that would be contrary to— (i) a condition of a consent for clearance of native plants under this Act or a consent for clearance of native vegetation under a repealed Act; or (ii) a condition imposed in connection with an approval granted in relation to clearance of native vegetation under the repealed regulations. 13—Vehicle tracks (1) Clearance or taking of native plants for the purposes of establishing a new track, or maintaining an existing track, that is not more than 5 m in width, for use by vehicles having at least 4 wheels, provided that— (a) the track is reasonably required to provide access; and (b) the clearance or taking is limited to the extent reasonably required to achieve the relevant purpose; and (c) there is no other practicable alternative (including, in the case of a new track, to the position of the track) that would involve— (i) no clearance or taking; or (ii) the clearance or taking of fewer native plants; or (iii) the clearance or taking of native plants that are less significant; or (iv) the clearance or taking of native plants that have been degraded to a greater extent than the plants proposed to be cleared or taken (if relevant). (2) If clearance or taking is for the purposes of establishing a new track— (a) subclause (1) does not apply to native plants that are growing or situated on land that is subject to a biodiversity agreement; and (b) in the case of clearance—the CAC must be notified of the proposed clearance in the approved form. (3) Subclause (1) does not apply to— (a) clearance or taking of native plants on a road reserve to establish or maintain a track that runs along the road reserve (that is, a track that does not run from the road to the opposite side of the reserve); or (b) clearance or taking of native plants established as a condition of a consent for clearance of native plants under this Act or a consent for clearance of native vegetation under a repealed Act; or (i) a condition of a consent for clearance of native plants under this Act or a consent for clearance of native vegetation under a repealed Act; or (ii) a condition imposed in connection with an approval granted in relation to clearance of native vegetation under the repealed regulations; or (d) clearance or taking of native plants undertaken in connection with subdivision of the land on which the native plants are growing or situated. 14—Fences (1) Clearance or taking of native plants for the purposes of— (a) providing a strip of cleared land on either side or both sides of an existing fence for the purposes of maintaining the fence; or (b) providing a strip of cleared land on either side or both sides of a fence in the course of construction to provide access for the purposes of establishing the fence, if— (c) the fence is reasonably required to control access by people or the movement of animals; and (d) in the case of clearance for the purposes of establishing a new fence—the CAC has been notified of the proposed clearance in the approved form; and (e) — (i) in the case of a fence on the boundary of a person's land— (A) the width of the strip on the person's land does not exceed 5 m; and (B) in the case of a fence on the boundary of a road reserve—the width of the strip on the road reserve does not exceed 1 m; or (ii) in the case of a fence that is not on the boundary of a person's land—the total width of the strip on either side of the fence does not exceed 5 m. (a) subject to subclause (1)(e)(i)(B), clearance or taking of native plants on a road reserve; or (b) clearance or taking of native plants established as a condition of a consent for clearance of native plants under this Act or a consent for clearance of native vegetation under a repealed Act; or (i) a condition of a consent for clearance of native plants under this Act or a consent for clearance of native vegetation under a repealed Act; or (ii) a condition imposed in connection with an approval granted in relation to clearance of native vegetation under the repealed regulations; or (d) clearance or taking of native plants undertaken in connection with subdivision of the land on which the native plants are growing or situated. Division 5—Mining and petroleum operations 15—Mining operations (1) Clearance or taking of native plants incidental to— (a) operations authorised under a designated Act; or (b) operations authorised before 25 August 2003 under a designated Act if— (i) the clearance or taking is envisaged or authorised by or under a program or approval under the designated Act; or (ii) the clearance or taking would reasonably be expected to have been required under the authorisation under the designated Act taking into account the circumstances that existed immediately before 25 August 2003; or (c) mining operations at a private mine at which mining operations have not been discontinued for a period exceeding 12 months at any time after 21 November 1984. (2) Clearance or taking of native plants for the purposes of mining operations of a kind specified in subclause (1)(a) is permitted only if it is undertaken in accordance with— (a) in the case of clearance of native plants—a biodiversity management plan that proposes that a significant environmental benefit be achieved in accordance with the requirements of the SEB policy; and (b) in all cases— (i) in the case of operations authorised under the Mining Act 1971—a program under Part 10A of that Act; or (ii) in the case of operations authorised under the Energy Resources Act 2000—a statement of environmental objectives under that Act. (3) Subclause (2)(a) does not apply if the person undertaking the operations (or a person acting on the person's behalf) has made 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. (4) Subclause (1)(b) does not apply to native plants that are growing or situated on land that is subject to a biodiversity agreement. 16—Mineral exploration operations (1) Clearance or taking of native plants incidental to exploratory operations authorised under a designated Act if undertaken in accordance with Council guidelines adopted for the purposes of this clause. (2) Council guidelines adopted for the purposes of this clause must be directed towards ensuring that exploratory operations will have a minimal impact on biodiversity and be conducted in a manner that will allow for regrowth of native plants. (3) However, in the case of clearance of native plants, if it is not possible for the applicant to undertake the exploratory operations in accordance with the Council guidelines adopted for the purposes of this clause, the clearance is permitted if— (a) the clearance is undertaken in accordance with a biodiversity management plan that proposes that a significant environmental benefit be achieved in accordance with the requirements of the SEB policy; or (b) the person undertaking the exploratory operations makes 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.