Plantations and Reafforestation Act 1999

A plantation is an area of land where the predominant number of trees or shrubs forming the canopy have been planted for timber production, environmental protection (e.g., salinity reduction, biodiversity conservation, carbon sequestration rights) or any other purpose not principally food production (s 5). A natural forest is not a plantation, but an area is not a natural forest merely because it contains some native trees or shrubs that were not planted (s 5(2)). The Code may specify the required spacing between planted trees for the canopy definition (s 5(3)). A plantation may consist of multiple areas if under the same ownership or management and the Minister so determines (s 5(5)).

An authorised plantation is a plantation or proposed plantation for which authorisation has been granted under the Act (s 4). An authorised timber plantation is a subdivision of that class on which harvesting operations (beyond management operations) are permitted (s 10(3)). Complying plantations are those whose establishment complies with the relevant complying development standards in the Code and for which a species impact statement is not required; the Minister must grant authorisation for complying plantations (s 13). Non-complying plantations require a statement of environmental effects and public notification (s 14). Exempt farm forestry is plantation operations on a farm where the total area under plantation operations at any one time does not exceed 30 hectares, certain clearing exemptions apply, and harvesting does not exceed the Code’s maximum for exempt farm forestry (s 6). Unique or special wildlife values refer to land on which endangered species, endangered ecological communities or extinct species (under the Biodiversity Conservation Act 2016 or Fisheries Management Act 1994) grow or inhabit, but do not include planted trees on the plantation (s 32). The Code is the Plantations and Reafforestation Code made by regulation under Part 3; it may also define what constitutes establishment, management and harvesting operations (s 4(2)). Plantation operations are defined as establishment, management or harvesting operations (s 4). Establishment operations include clearing, use of pesticides and access roads for establishing a plantation; management operations include ongoing activities such as thinning, weed control and grazing; harvesting operations are cutting and removal of timber for production (including access roads) (s 4). The Act also uses the concept of owner broadly to include owners, lessees, the Forestry Corporation for State forests, and holders of forestry rights under the Conveyancing Act 1919 (s 4).

The Act directly affects owners and managers of plantations (including proposed plantations) on land to which the Act applies. Owners include the registered proprietor, lessee, the Forestry Corporation for Crown-timber lands, and holders of a forestry right (s 4). Managers are the persons in charge of plantation operations (s 4). Any person who carries out plantation operations on land that requires authorisation but is not authorised commits an offence (s 9(3)). Applicants for authorisation , who may be the owner or any other person with the owner’s written consent (s 11(1)) , are affected by the application process, which requires maps, information, and in non-complying cases a statement of environmental effects (s 14). Local councils whose areas contain plantations are affected as they must be notified of decisions (ss 12(3), 14(3)), and may be designated as the recipient of transport infrastructure contributions (s 44). Regional committees established by the Minister (s 40), comprising local council and other representatives, prepare contribution plans that set financial contributions payable by timber plantation owners (s 41). The Minister and the Secretary of the Department of Regional NSW have key regulatory functions: the Minister determines applications, imposes conditions, cancels authorisations, issues directions to protect wildlife values, makes stop work orders, and can delegate functions (ss 12, 20, 22, 35, 58, 67). Authorised officers , appointed by the Minister (s 61) , have powers to enter and inspect plantations, require information, and issue penalty notices (ss 61A, 61B, 62). Landholders whose land adjoins a proposed non-complying plantation are affected because they must be given copies of the application and invited to make submissions (s 14(3)(b)). The Act also affects holders of licences or leases under the Forestry Act 2012, as compliance with the Code becomes a condition of those authorities (s 31(2)). Bona fide purchasers for value rely on plantation certificates as conclusive proof of the matters certified (s 68(6)).

The central duty is the requirement to obtain authorisation before carrying out plantation operations on any plantation that is not exempt farm forestry or ancillary plantation operations (s 9). The duty applies to persons who carry out, cause or permit the operations. Once authorised, the owner and manager must ensure that plantation operations comply with the Code and any conditions of the authorisation (s 31, s 20). For State forests, this compliance is a condition of any relevant licence under the Forestry Act 2012 (s 31(2)). In the case of a complying plantation, the Minister must grant the application if it meets the standards; the Minister may still refer it to the non-complying track due to special circumstances (s 13). For non-complying plantations, the Minister must consider the Code, likely environmental and socio-economic impacts, site suitability, submissions and the public interest (s 14(4)). If a species impact statement is required , because the Minister forms the opinion one would be needed under the EPA Act , the applicant must provide one, and the Minister cannot grant authorisation without concurrence from the relevant Secretary or Minister (s 15). The applicant has the right to appeal to the Land and Environment Court against a refusal of authorisation or against conditions imposed, within 28 days (s 24). The owner or manager has a duty to notify the Minister as soon as they become aware that plantation operations have or are likely to have an impact on unique or special wildlife values (s 33). If the Minister gives a direction restricting harvesting on a timber plantation to protect such values, the owner or manager who suffers direct financial loss is entitled to compensation, provided the direction is complied with (s 36). Compensation is determined by agreement or arbitration (s 37). The owner or manager also has the right to appeal against a stop work order or remedial direction under Part 7 to the Land and Environment Court within 30 days (s 60). The owner or manager (or any person with consent) has the right to apply for a plantation certificate (s 68). The owner must notify the Minister within 28 days of a change in ownership of the whole or part of an authorised plantation, and of the appointment of a new manager (s 17A). If a significant change in ownership and management occurs (e.g., part of the land changes both ownership and management), a new application for authorisation is required (s 17C). The Minister has the duty to maintain a public register of authorised plantations and their conditions (s 23).

The Act establishes a graduated enforcement regime. The primary offence is carrying out plantation operations on a plantation required to be authorised when it is not authorised, or carrying out operations not of the kind authorised by the class of authorisation. The maximum penalty is 1,000 penalty units, plus 100 penalty units for each day the offence continues (s 9(3)). Breaching a condition of an authorisation carries the same maximum (s 20(6)). Failing to notify a change in ownership or management attracts a maximum penalty of 10 penalty units (s 17A). The regulations may create offences for breaching the Code, punishable by up to 100 penalty units (s 31(3)). Stop work orders and directions for remedial work , issued by the Minister when satisfied that plantation operations are being or about to be carried out in contravention of the Act or Code , carry penalties of 1,000 penalty units plus 100 per day for non-compliance without reasonable excuse (ss 58, 59). Obstructing an authorised officer, failing to comply with a requirement, or providing false or misleading information is punishable by up to 100 penalty units (s 61C). Authorised officers may also issue penalty notices for prescribed offences (s 62). The Minister may also apply to the Land and Environment Court for civil enforcement orders to remedy or restrain a breach (s 57). The court may also impose conditions. The Minister can recover the cost of remedial work performed by an authorised person from the person who failed to comply with the direction, as a debt (s 59(6)). Protection from personal liability is given to authorised officers acting in good faith (s 61D). Proceedings for offences may be brought summarily before the Local Court (maximum 100 penalty units) or the Land and Environment Court (no cap except as per the Act) (s 64). Proceedings must be brought within 2 years after the act or omission, or within 2 years after evidence first came to the attention of an authorised officer (s 64(5)-(6)). The Minister’s approval is required to bring proceedings (s 64(3)). The charge on land to secure unpaid transport contributions under Part 5 can be registered against title and enforced as a debt (s 46). A plantation certificate is conclusive proof for a bona fide purchaser, but the certificate holder can still be prosecuted; the certificate is presumed true and correct in favour of the holder (s 68(6)-(7)).

Part 6 contains the key provisions that displace other legislation. The Environmental Planning and Assessment Act 1979 does not apply to plantation operations on an authorised plantation or to exempt farm forestry: development consent is not required, Part 5 (environmental impact assessment) does not apply, and environmental planning instruments cannot prohibit or restrict such operations (s 47). However, ancillary plantation operations , those that are ancillary to development approvals under Part 4 or Part 5 of the EPA Act where the development does not mainly comprise plantation operations , remain subject to that Act (s 9(4)). The authorisation under this Act is not an approval under Part 5 of the EPA Act (s 47(3)(b)). Persons carrying out plantation operations on an authorised plantation are exempt from sections 2.1-2.4 of the Biodiversity Conservation Act 2016 (dealing with the duty to avoid harm to biodiversity) and certain stop work orders under that Act and the National Parks and Wildlife Act 1974 cannot be made to prevent plantation operations (s 48). However, orders to protect Aboriginal objects or places under the National Parks and Wildlife Act are unaffected (s 55). Exemptions from the Fisheries Management Act 1994 are provided for dredging/reclamation, marine vegetation, fish spawning, fishways, and threatened species provisions under Part 7A, but only if operations comply with the Code and authorisation conditions (s 49). Interim heritage orders and listings under the Heritage Act 1977 cannot be made to prevent plantation operations on authorised plantations (s 50). Local councils cannot issue orders under section 124 of the Local Government Act 1993 to prevent such operations (s 51). A controlled activity approval under the Water Management Act 2000 is not required, and directions under Part 1 of Chapter 7 cannot prevent operations (s 52). Soil conservation notices under the Soil Conservation Act 1938 cannot be served to prevent operations (s 53). Plantation operations on unformed Crown roads are permitted without consent from the roads authority if done in accordance with the Code and authorisation (s 54). Despite these exemptions, the Act preserves the application of other laws to plantation operations except as expressly provided (s 56). The Code itself must not be inconsistent with any Act applying to plantation operations, except as provided by the Act; any inconsistent provision in the Code is void (s 28(1)). In particular, the Code cannot be inconsistent with the Protection of the Environment Operations Act 1997 (s 28(2)). The Act binds the Crown (s 65).

The Act received assent in 1999 and commenced on a day or days appointed by proclamation (s 2). Significant amendments include:

• 2000 No 92: Consequential amendment to s 19 (Water Management Act 2000 reference).
• 2004 No 55: Minor amendment to s 27 (Fisheries Management Act references).
• 2006 No 58: Repealed s 72 and Schedule 2.
• 2007 No 94: Amendment to s 64 (Local Court jurisdiction and limitation periods).
• 2010 No 90 (Plantations and Reafforestation Amendment Act): Major reform. Inserted ss 17A, 17B, 17C (change of ownership/management notifications, effect on authorisation). Repealed s 16. Amended ss 3 (objects to include regional transport infrastructure), 4 (definitions including authorised officer), 6 (exempt farm forestry), 9 (redefinitions of ancillary plantation operations), 12 (notification to council and Crown land minister), 14 (public notification and submissions period 3 weeks), 15 (species impact statement), 17 (application to established plantations), 20 (conditions), 21 (duration substituted), 22 (cancellation), 23 (register), 26 (public consultation), 42 (financial contributions), 47 (EPA Act exemption), 58 and 59 (stop work and remedial work), 60 (appeals), 61 (authorised officers substituted), 61A-61D inserted (entry, information, offences, protection), 62 (penalty notices), 63 (evidence), 64 (proceedings), 67 (delegation), Schedule 3 (savings for existing plantations).
• 2011 No 22: Consequential amendment to s 9 (State significant infrastructure reference).
• 2012 No 42 (Statute Law (Miscellaneous Provisions) Act): Amendment to s 17A (application of amendment to ownership changes).
• 2012 No 96 (Forestry Act 2012): Consequential amendments replacing references to Forestry Act 1916 with Forestry Act 2012 in ss 4, 7, 31, 43, Schedule 3.
• 2014 No 72 (Marine Estate Management Act): Amendment to s 7 (marine park references).
• 2017 No 17 (Crown Land Management Act 2016): Amendments to ss 12 and 54 (Crown road references).
• 2017 No 22 (Fines Amendment Act): Substituted s 62 (penalty notices) to refer to Fines Act 1996.
• 2018 No 25: Amendment to s 26 (public consultation).
• 2019 No 1 (Department of Regional NSW): Amendments updating departmental references in ss 4, 15, 17A, 23, 26, 61B, 61C, 67.
• 2022 No 59: Amendment to s 4 (definition of Department updated), s 69 (electronic service of notices), s 15 (Secretary references).
• 2023 No 7: Amendments to s 7 (areas of outstanding biodiversity value added to exclusions), s 15 (concurrence references), s 27 (Code content for biodiversity conservation), s 32 (unique wildlife values definition), s 34 (notification to Biodiversity Conservation Minister), s 48 (exemptions from Biodiversity Conservation Act).

The Act itself does not refer to any specific court decisions. However, the Act provides several avenues for litigation. Appeals against the Minister’s decision to refuse authorisation or impose conditions may be brought to the Land and Environment Court within 28 days (s 24). Appeals against cancellation of authorisation are similarly governed (s 24(2)). Appeals against stop work orders or remedial directions under Part 7 must be made within 30 days, and the lodging of an appeal does not automatically stay the order unless the Court so directs (s 60). The Minister may also bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the Act or Code (s 57). The Court can make any order it thinks fit, and the definition of breach includes threatened or apprehended breaches (s 57(4)). The Court may also hear appeals regarding the reasonableness of conditions imposing financial contributions under Part 5 (s 42(6)). Compensation disputes under Part 4 for restriction of harvesting to protect wildlife values are resolved through arbitration, not court proceedings (s 37). The Act also contemplates that the Minister may be a delegate of other agencies for obtaining related approvals (s 19), which may give rise to administrative law challenges. The Local Court has limited jurisdiction in summary proceedings: it can impose a maximum penalty of 100 penalty units regardless of the higher maximum in the Act (s 64(2)). The Land and Environment Court may impose the full penalty. The limitation period is two years from the offence or from when evidence came to an authorised officer’s attention (s 64(5)-(6)). The Act also provides for an official certificate as prima facie evidence of plantation status, ownership, service of notices, and authorised officer appointment (s 63). The plantation certificate under s 68 is conclusive proof in favour of a bona fide purchaser for value, and is conclusively presumed true in proceedings against a person who obtained or might rely on it (s 68(6)-(7)). No specific case names are provided in the source material.

Several provisions create traps for the unwary. The definition of plantation is broad: it includes areas planted for environmental protection or carbon trading purposes, not just timber production (s 5(1)). This means a landholder who plants trees for salinity control or carbon credits may inadvertently be operating a plantation requiring authorisation. However, exempt farm forestry under 30 hectares and ancillary plantation operations are exempt (ss 6, 9). The offence of unauthorised plantation operations is absolute on its face: a person who carries out, causes or permits operations on an unauthorised plantation that requires authorisation is guilty, with no mention of a defence of honest or reasonable mistake (s 9(3)). The penalty is heavy: 1,000 penalty units plus 100 per day. Time limits are strict: for a complying plantation, the Minister must decide within 14 days; if not, the application is deemed refused for the purposes of an appeal (s 18). For non-complying, 40 days. But the clock stops while the Minister requests further information (s 18(3)). If the Minister does not decide within the period, the applicant can appeal as if refused, but the Minister can still grant later (s 18(2)). Conditions on authorisations are limited to those authorised or imposed by the Act (s 20(4)). However, conditions relating to financial contributions or management/harvesting can only be altered at the request of the owner or manager (s 20(5)). Cancellation can occur within 3 years after establishment if the plantation was not established in accordance with the Code or conditions (s 22(2)), and mandatory cancellation occurs 3 years after grant if the planting is not completed (unless the Minister accepts a reason for delay) (s 22(3)). Changes in ownership or management require careful attention: if part of the land changes both ownership and management, a new authorisation application is needed, and the original authorisation ceases on the date of the change (s 17C). The Act provides a 28-day transitional deemed authorisation period to allow a fresh application (s 17C(6)). Stop work orders can be made without prior notice to the affected persons (s 58(6)), and the order can last up to 2 years (s 58(4)). Remedial directions also require no prior notice (s 59(7)). Compensation under Part 4 is conditional on compliance with the direction; if the direction is not complied with, compensation is repayable (s 36(6)). Self-incrimination is not a valid excuse to refuse to provide information to an authorised officer, but the information cannot be used in criminal proceedings against the person except for an offence under s 61C (false/misleading information) (s 61B(4)-(5)). Plantation certificates are conclusive only in favour of a bona fide purchaser for value; for other purposes, they are merely evidence (s 68(6)-(7)). Limitation periods have two possible start dates: 2 years from the offence, or 2 years from when evidence came to an authorised officer’s attention (s 64(5)). The latter can extend the period significantly. Local Court proceedings are capped at 100 penalty units, but the Land and Environment Court can impose the full 1,000 units plus daily penalties (s 64(2)). Excluded land under s 7 includes areas of outstanding biodiversity value; if land becomes such an area after authorisation, the authorisation continues (s 7(3)). However, if the land already falls within Part 1 or Part 2 of Schedule 1, the Act does not apply at all, so no authorisation can be granted.

To comply with the Act, a person proposing to establish or operate a plantation must first determine whether the land is excluded under s 7 and Schedule 1. If excluded, no authorisation under the Act is possible or required , other laws apply. If the land is not excluded, the person must assess whether the proposed plantation operations fall within exempt farm forestry (s 6). Exempt farm forestry does not require authorisation but must stay within the 30-hectare limit, meet clearing exemptions, and not exceed the Code’s maximum harvesting for exempt farm forestry. The operations are still exempt from the EPA Act. If not exempt, an application for authorisation must be made to the Minister under s 11, by the owner or with the owner’s written consent. The application must identify the land by a map, state the class (timber or non-timber), and include any required information. The applicant should determine whether the plantation can be a complying plantation: compliance with the Code’s complying development standards and no need for a species impact statement (s 13). For a complying plantation, the applicant must provide a statement demonstrating compliance; the Minister must grant authorisation within 14 days and it is a condition that establishment operations comply with those standards. If the plantation cannot be a complying plantation (including if a species impact statement is required), the applicant must provide a statement of environmental effects and a statement of non-compliance with the complying development standards (s 14). The Minister will notify the council and adjoining owners, invite submissions within 3 weeks, and consider the matters in s 14(4). If a species impact statement is required, it must be prepared and submitted; concurrence from the relevant Secretary or Minister is needed (s 15). Once authorisation is granted, the owner and manager must comply with all conditions and with the Code (s 31). This includes ensuring that plantation operations (establishment, management, harvesting) are carried out in accordance with the Code’s provisions on native vegetation, soil erosion, water protection, biodiversity conservation, fire trails, and harvesting plans (s 27). If the plantation is a timber plantation, a condition requiring a financial contribution to transport infrastructure will be imposed in accordance with the relevant regional contribution plan (ss 41-42). The owner must pay that contribution when due, and the Minister may secure it by bank guarantee or charge on land (s 44, s 46). The owner must also notify the Minister of any change in ownership of the whole or part within 28 days (s 17A), and of any new manager. If a significant change occurs , part of the land changes both ownership and management , a new application for authorisation must be made (s 17C). During the transition, the part remains authorised for up to 28 days or until the application is determined. If at any time the owner or manager becomes aware that plantation operations are having or are likely to have an impact on unique or special wildlife values, they must notify the Minister immediately (s 33). The Minister may then evaluate and potentially direct restrictions, with possible compensation for timber plantations. The owner and manager must comply with any stop work order or remedial direction (ss 58, 59). If they wish to challenge a decision, they can appeal to the Land and Environment Court within the prescribed time limits. They may also obtain a plantation certificate from the Minister to provide assurance to purchasers or lenders regarding the status of the land (s 68). Keeping accurate records of compliance with the Code, conditions, and any notifications is essential for defending against enforcement action.