Across Queensland, landholders have been discovering “blue dots” on the Government’s vegetation mapping for their properties (available at https://www.dnrm.qld.gov.au/qld/environment/land/vegetation/vegetation-map-request-form).

The blue dots are the result of regulations under the Nature Conservation Act. The Department of Environment and Heritage Protection (DEHP) maintains records of historical and reported sightings of protected plant species and the areas within a two-kilometre buffer around these sightings become “high risk areas” (blue dots) on Flora Survey Trigger Maps.

The protected plants regime under the Nature Conservation Act is separate from the more familiar tree clearing laws in the Vegetation Management Act. As a result, clearing that is permitted under the Vegetation Management Act can be unlawful under the Nature Conservation Act. For example, Category X areas recognised under the Vegetation Management Act are not necessarily exempt from the protected plants regime and clearing them without regard to any “blue dots” could inadvertently affect landholders trying to do the right thing.

The Nature Conservation Act has more limited exemptions, with those relevant to agriculture including:

  • clearing in compliance with a self-assessable vegetation clearing code for thinning, managing weeds or managing encroachment;
  • clearing for routine maintenance of existing infrastructure (such as roads, fences, stockyards, water facilities and buildings), maintenance in the course of plantation management or maintenance in the course of cropping on land that was previously lawfully cleared;
  • establishing or maintaining a firebreak or fire management line within certain parameters; and
  • clearing to reduce or avoid an imminent risk of serious injury or death to a person or damage to buildings or property.

Where no exemption applies, before clearing in an area covered by a blue dot, landholders are required to engage a suitably qualified person to conduct a flora survey in compliance with certain guidelines (estimates of the cost of the survey are in the order of $5,000). If the flora survey does not detect any Endangered, Vulnerable or Near Threatened (EVNT) plants, a landholder must complete an exempt clearing notification. If EVNT plants are detected, the landholder must apply for a clearing permit (fees for which range up to $2,866), which will be assessed against DEHP’s guidelines. DEHP can impose a condition on the clearing permit that requires the offset (protection of another area) of any EVNT plants to be cleared.

Unless a landholder follows that process, the clearing is potentially an offence under the Nature Conservation Act carrying a maximum penalty (depending on the number and classification of plants cleared) of up to $378,450 or 2 years’ imprisonment.

The “blue dot” restrictions on clearing “Category X” (non-remnant) areas under the Nature Conservation Act naturally raise several concerns from a landholder’s perspective, especially given the reliance many landholders have placed on having “locked in” Category X areas under a Property Map of Assessable Vegetation. It must be questioned whether the protected plants regime is fulfilling its statutory premise to protect plants “in the wild” or whether, by extended into non-remnant areas, it is reaching further than is warranted.

The Nature Conservation Act is due for review in 2018 and landholders should have an opportunity to present better alternatives to the current regime as part of that review. In the meantime, landholders should follow the survey/permit process when contemplating clearing within “blue dots” unless an excemption applies.

Thynne + Macartney’s agribusiness lawyers frequently assist landholders to analyse vegetation mapping against the current laws and to respond to Departmental investigations into clearing.

This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

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