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Agricultural Law : My Land, My Trees…Right?

The Queensland Government has entertained various land clearing rules and regulations over the years in a bid to prevent people from clearing their land. A large portion of those impacted by these laws are farmers who rely on their land to run their enterprises.  Making headlines in 2016 was the attempt by the labour government to implement laws reversing the onus of proof to landholders charged with tree clearing offences and also removing the defence of ‘mistake’.

Farmers were put on hold to discover the fate of those laws, which were subsequently rejected by parliament.

Although those laws have not passed, many people are still not sure of their rights under the current Queensland tree clearing laws.

I need to clear land on my property, where do I start?

All landowners should obtain their PMAV (property map of assessable vegetation). A PMAV is a property scale map that shows the boundaries of vegetation categories on the property, provided by the Department of Natural Resources and Mines (DNRM).

Land can be categorised as category A, B, C, R and X depending on the vegetation and previous actions taken towards the land.[1]

Descriptions for each category are listed briefly in the below table:

CATEGORY DESCRIPTION REQUIREMENTS ACompliance areas, environmental offset areas and voluntary declaration areas Clearing requires a development approval, exemption, or self-assessable clearing code or area management plan notification. BRemnant vegetation areasClearing requires a development approval, exemption, or self-assessable clearing code or area management plan notification. CHigh-value regrowth areasClearing requires a development approval, exemption, or self-assessable clearing code or area management plan notification. RRegrowth within 50m of a watercourse in the priority reef catchment areas.Clearing requires a development approval, exemption, or self-assessable clearing code or area management plan notification. XAreas not regulated under the Vegetation Management Act 1999No permit or notification required on all but certain state land tenures.

Land get categorised when:

  1. a Property Map of Assessable Vegetation (“PMAV”) is created[2]; or

  2. it is placed on the Regulated Vegetation Management Map (“RVMM”).[3]Once the information specific to your property has been obtained, you will need to determine the clearing activity and the requirements for the category of land on which you intend performing those activities. You may need to first advise DNRM of your intentions to perform tree clearing activities before start.  A failure to notify DNRM or to perform unauthorised activities can incur significant penalties. Land clearing activities will ordinarily fall into the following categories:

  3. Codes

  4. Clearing exemptions. These exemptions apply to a range of routine property management activities. No approvals by DNRM are required to clear under a clearing exemption.

  5. Self-assessable codes. These codes apply to activities such as thinning and weed control and will outline what activities can and can’t be carried out on each category.  There are codes specific to each region and the code will apply depending on the category of land you intend to clear.   In order to perform work under a self-assessable code, DNRM must be notified before any of that work is performed. The codes are available for download via the Queensland Government website here.

  6. Area management plans (“AMP”). These are essentially an alternative approval system for vegetation clearing. They list the purposes and clearing conditions that have been approved for areas covered by the plan. In order to clear under an AMP, DNRM must be notified before any of that work is performed.

  7. Development Approval. If none of the above matters apply, then you may need to consider making an application for a development approval. Further information can be found here.

What happens if I do not comply with land clearing laws?

DNRM utilise the Queensland Globe tools to perform searches of properties. Those tools can see minute detail down to tracks left after a property has been mechanically cleared.  DNRM then compares those images to historical images of the property to identify the suspected cleared areas.

Prosecution

Once DNRM become aware of suspected clearing activities, they are required to institute proceedings within the following timeframes:

  1. 1 year after the commission of the offence; or

  2. 1 year after the offence comes to the complainant’s knowledge, but within 5 years after the offence is committed [4]

If you are charged with a tree clearing offence under the Sustainable Planning Act 2009, the maximum penalties of $202,963.50 (1665 penalty units) apply and the offence will be dealt with in the Magistrates Court.

In addition to the financial penalty, the land allegedly cleared can then become “Category A” land. The affect of Category A, is that the land is effectively ‘locked’ until it can regenerate, which restricts any proposed use over that land.

Restoration Notices

DNRM not only have the option of prosecution available, but also the power to issue a ‘restoration notice’ and prepare a restoration plan.   A restoration notice is a notice issued to a landowner who DNRM suspect has committed a tree clearing offence.

A restoration plan will follow the restoration notice and be implemented (either based on an agreed resolution between DNRM and the landowner, or by their own application in the absence of consent from the landowner). Restoration plans last 15 years and are recorded on property’s title.

Ordinarily, DNRM will not send out restoration notices without first discussing with the landowners and either giving them the opportunity to respond or to negotiate a restoration plan.

As a practical guide, in order for DNRM to resolve matters, they usually require areas of land equal to 150% of the cleared area to be agreed as ‘restoration areas’.   For example, if you clear 100 acres, DNRM will want to implement a restoration plan for 150 acres of your property in order to deter future unauthorised clearing.

The benefit of negotiating a resolution with DNRM is that the negotiations could result in the land being categorised as category B, less intrusive than Category A.

What should I do?

If you are wanting to clear any part of your property, we recommend obtaining legal advice from someone who knows this area of law. The risks of not following correct procedure are so high and the losses (not only financial) can impact many landowners significantly.

If you would like more information, please contact Adelaide Davies at Creevey Russell Lawyers

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