Skip to main content
Norman Waterhouse

Hello Biodiversity Act 2025, and goodbye (soon) Native Vegetation Act 1991

The Biodiversity Act 2025 recently received royal assent and has now passed into law as an Act of parliament (although it has not yet commenced operation). The Act, once commenced, will repeal the Native Vegetation Act 1991 and make amendments to the National Parks and Wildlife Act 1972, amongst others. The Department for Environment and Water has advised that the Act will be implemented in a staged manner over the coming 2 years.

Since our previous article on the draft Bill (available here), there have been some significant amendments to the Act as passed. The advocacy of the LGA has undoubtedly contributed to those amendments, many of which respond positively to concerns raised by local government sector. The most substantive are considered below.

Application of plant clearance controls

The Act will introduce significant changes over clearance controls under the Native Vegetation Act 1991 (NV Act).

Whereas the NV Act controlled the clearance of native plants indigenous to South Australia, the Act will extend controls to include a native plant that is not indigenous to the State but comprises a ‘regulated tree’. For the purposes of the Act a ‘regulated tree’ is a tree which based on the size of its circumference alone would constitute a regulated tree for the purposes of the Planning, Development and Infrastructure Act 2016 (SA) (PDI Act). Given the overlap in the application of the Act and the PDI Act regulated tree controls will at least immediately continue. This amendment will increase the circumstances in which councils must resolve the difficult and vexing question of whether a tree is a ‘regulated tree’ or ‘native vegetation’ (or a ‘native plant of a relevant kind’ as will be the case under the Act).

The provisions of the Act relating to the spatial application of clearance controls have been significantly amended over the draft Bill. The predominant clearance control mechanism is the prescription as a ‘regulated act or activity’ of the ‘the 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’.

As opposed to the draft Bill, the Act no longer includes within the definition of ‘public land’ ‘community land’ within the meaning of the Local Government Act 1999, which would have extended clearance controls to community land within metropolitan councils.

Further, at first instance the ‘regulated clearance area’ must be the same area in which the NV Act applies. However, the Minister is empowered to thereafter amend the ‘regulated clearance area’ and in doing so must undertake public consultation (which was not the case under the draft Bill) as well as subjecting the proposed variation to parliamentary scrutiny.

Nominations to the Biodiversity Council

Although the Minister will retain a ‘right of veto’ in relation to nominations made by the LGA for persons to be appointed to the Biodiversity Council with skills, knowledge and experience in local government where the Minister considers that those persons lack the required experience, under the Act, the Minister must first provide the LGA an opportunity to nominate a further group of 3 persons.

Review & Appeal Process

The Act introduces a right of review to the Biodiversity Council in relation to certain

decisions made by the Clearance Assessment Committee (CAC), namely, a decision to:

  • refuse to give consent to a proposed clearance; or
  • revoke a clearance consent previously granted.

However, this right of review is limited and specifically excludes a decision:

  • to give consent to clear plants to an extent that is lesser than that requested by the person;
  • to impose any conditions or other requirements relating to a consent; and
  • of the CAC pursuant to a direction of the Council given on a previous review.

Roadside Clearance

The exemption relating to the clearance of native plants growing or situated on a road reserve has been simplified such that this simply requires that the clearance be ‘undertaken in accordance with [Biodiversity] Council guidelines relating to the clearance or taking of that kind’. In contrast, the draft Bill provided that relevant guidelines may require councils to prepare a native plant management plan subject to the review of the Clearance Assessment Committee.

Social Infrastructure

The definition of ‘infrastructure’ in Schedule 2 has been amended to include ‘social infrastructure’. That term is defined by reference to the delivery of ‘social services’, which term is defined in Schedule 2 to 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;’

These definitional changes will have the effect of expanding the scope of the relevant exemptions for maintenance and development of important community facilities in regional areas, such as a health clinic or social housing.

The implementation of the Act

Prior to the commencement of the Act, the National Parks and Wildlife Act 1972 and the Native Vegetation Act 1991 will continue to apply. The Department has advised that it is now working on developing the requisite subordinate legislation, including the regulations, policies and guidelines such that the Act can be commenced in a staged manner over the coming two years.

For more specific information on any of the material contained in this article please contact Peter Psaltis on +61 8 8210 1297 or ppsaltis@normans.com.au or Stephan Koefer on +61 8 8210 1368 or skoefer@normans.com.au.

Get in touch