PARLIAMENT OF VICTORIA
Native Vegetation Credit Market Bill 2014
TABLE OF PROVISIONS
Clause
Page
PART 1—PRELIMINARY
1
2
3
4
5
6
7
8
1
Purposes
Commencement
Definitions
Objects of Act
Habitat importance threshold test
Potential gain
Native vegetation credits not personal property
Act binds the Crown
1
2
2
11
11
12
12
13
PART 2—CREATION OF NATIVE VEGETATION CREDITS
FOR PRIVATE LAND
14
Division 1—Application for native vegetation credits
14
9
10
11
12
13
Application for native vegetation credits
Secretary may require further information
Secretary may require application to be amended
Secretary to accept, amend or reject application
Offence to provide false or misleading information or document
Division 2—Recording of native vegetation credits
14
Native vegetation credits must be recorded
14
15
15
16
17
18
18
PART 3—CREATION OF NATIVE VEGETATION CREDITS
FOR CROWN LAND
19
Division 1—General
19
15
Holder of credits created under Part 3
19
Division 2—Creation of native vegetation credits for Crown land
16
17
18
19
When native vegetation credits can be created for Crown land
Creation of native vegetation credits for unreserved Crown land
Creation of native vegetation credits for reserved Crown land
Native vegetation credits must be recorded
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19
19
20
22
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Division 3—Application for native vegetation credits prior to
purchase of land
20
21
22
23
Application for native vegetation credits with Ministerial
consent
Secretary may require further information
Secretary may require application to be amended
Secretary must accept, amend or reject application
Division 4—Purchase of land
24
25
26
27
Agreement for the purchase of land
Land purchased under this Part taken to be reserved
Notification of purchase
Publication of purchase
34
35
Preparation of vegetation improvement plans
Approval of vegetation improvement plan
Period during which vegetation improvement plan has effect
Variation of vegetation improvement plans
Recording of cancellation or allocation of credits under
section 31
Calculation of native vegetation credits that may be created
in relation to a site
Calculation of general gain for a site
Calculation of specific gain for a site
PART 5—NATIVE VEGETATION MANAGEMENT
AGREEMENTS WITH OWNERS OF PRIVATE LAND
36
37
38
39
40
41
42
43
44
45
Native vegetation management agreements
Recording of native vegetation management agreements
Effect of recording of agreement
Native vegetation management agreement fee
Variation of agreements relating to land for which credits are
created
Variation of agreements relating to land for which credits are
not created
Recording of variation on Land Register
Cancellation of native vegetation management agreements
Recording of cancellation on Land Register
Recording of cancellation or allocation of credits on Native
Vegetation Credit Register
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29
30
30
31
31
PART 4—CALCULATION OF NATIVE VEGETATION
CREDITS
33
25
26
27
27
29
Division 5—Vegetation improvement plans
28
29
30
31
32
25
31
32
33
33
38
39
39
39
40
43
43
44
45
46
46
51
51
52
54
55
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PART 6—NATIVE VEGETATION CREDIT REGISTER
56
Division 1—Native Vegetation Credit Register
56
46
Register to be kept
56
Division 2—Registrar and staff
47
48
49
56
Employment of Registrar and staff
Functions of Registrar of Native Vegetation Credits
Delegation of functions
Division 3—Records
50
51
52
53
57
Native vegetation credit records
Recording of legal personal representative
Recording of survivor of joint holding
Recording of trustee in bankruptcy
Division 4—Access to information in the Native Vegetation Credit
Register
54
55
56
57
58
Disclosure of information to the Secretary
Information available from the Native Vegetation Credit
Register
Suppression of certain personal records and information
Right of review
Searching the Native Vegetation Credit Register
Division 5—Correction and amendment of the Native Vegetation
Credit Register
59
60
Correction and amendment of the Native Vegetation Credit
Register
Notification of interested persons
Division 6—General
61
69
Registrar of Native Vegetation Credits may require proof of
identity
Definition
Allocation of native vegetation credits
Allocation must be recorded
Limits on allocation of native vegetation credits
Cancellation of corresponding alternate credits on allocation
Application for reversal of allocation of credits
Reversal of allocation by Minister of credits created for Crown
land
Notification and recording of reversal of allocation
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58
59
60
61
61
61
62
63
63
64
64
65
66
PART 7—ALLOCATION OF NATIVE VEGETATION CREDITS
62
63
64
65
66
67
68
56
56
57
iii
66
67
67
67
68
69
69
69
70
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PART 8—TRANSFER OF NATIVE VEGETATION CREDITS
70
71
72
73
74
75
76
77
78
Native vegetation credits may be transferred
Consideration for transfer
Automatic transfer of native vegetation credits on transfer of
land
Native vegetation credits cannot be transferred if previously
allocated
Native vegetation credits cannot be transferred if suspended or
cancelled
Secretary must approve certain transfers of credits
Transfer of certain credits held by the Minister
Application to Registrar of Native Vegetation Credits for
recording of transfer of credits
Recording of transfer of native vegetation credits
72
72
72
72
73
73
73
76
77
78
PART 9—SUSPENSION AND CANCELLATION OF NATIVE
VEGETATION CREDITS
79
Division 1—Suspension of native vegetation credits
79
79
80
Suspension on grounds of false or misleading information
Recording of suspension and lifting of suspension
Division 2—Cancellation of native vegetation credits
81
82
83
Cancellation on basis of false or misleading information
Cancellation for non-compliance with native vegetation
management agreement
Recording of cancellation
79
80
81
81
81
82
PART 10—NATIVE VEGETATION CREDIT FUND
83
Division 1—Native Vegetation Credit Fund
83
84
85
Native Vegetation Credit Fund established in Trust Fund
Money paid into the Fund
Division 2—Notification of transfer of land
86
83
Owner of land to notify Secretary if land transferred
Division 3—Payments from the Fund
87
88
89
90
91
92
iv
83
84
Payments from the Fund
Initial payment to owner of private land
Payments to owner of private land for meeting requirements
Initial payment to Crown land manager
Payments to Crown land manager for meeting requirements
Unpaid consideration
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83
84
84
85
86
87
88
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PART 11—REPORTING, ENFORCEMENT AND
COMPLIANCE
90
Division 1—Preliminary
90
93
Definitions
90
Division 2—Reporting obligations
94
95
96
97
90
Owner of land to provide annual report to Secretary
Crown land manager to provide annual report to Secretary
Crown land Ministers to provide annual report
Periodic reports for private land
Division 3—Monitoring and investigation powers
98
99
100
101
102
103
104
105
106
107
108
109
Power to enter land with consent
Acknowledgement of consent to entry and search under
section 98
Power to enter land with notice
Acknowledgement of things to be taken under section 100
Power to enter land with warrant
Announcement before entry on warrant
Copy of warrant to be given to occupier
Production of identification
Offences relating to enforcement
Duty to minimise inconvenience or damage
Requirements as to taking samples and seizure
Analysis and return of samples
Division 4—Enforcement
110
111
112
113
114
115
116
Power of Secretary to give directions
Automatic suspension of native vegetation credits
Secretary may take action required by notice
Enforcement orders
Injunctions
Amount due to Secretary is a first charge on land
Power of sale
Removal, destruction or lopping of protected native vegetation
Damage or degradation to protected native vegetation
Compliance with native vegetation management agreement
Orders to undertake specified works
Enforceable undertakings
Effect of undertakings
Enforcement of undertakings
Register of undertakings
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98
99
101
102
104
105
105
105
106
106
107
107
109
110
111
112
112
113
115
Division 6—Enforceable undertakings
121
122
123
124
95
107
Division 5—Offences
117
118
119
120
90
92
93
94
115
115
116
116
117
117
118
118
120
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Division 7—Review or reconsideration of decisions
125
126
127
Definition
Reconsideration of decisions
Review of decisions by VCAT
120
121
122
PART 12—GENERAL
128
129
130
120
124
Secretary may set fees for services provided by Department
employees
Secretary may approve forms
Regulations
124
124
124
PART 13—CONSEQUENTIAL AMENDMENTS AND
TRANSITIONAL PROVISIONS
129
Division 1—Transitional Provisions
129
131
132
Definition
Pre-existing credits
129
129
Division 2—Consequential Amendments
133
134
135
136
137
138
139
131
Conservation, Forests and Lands Act 1987
Crown Land (Reserves) Act 1978
National Parks Act 1975
Planning and Environment Act 1987
Traditional Owner Settlement Act 2010
Wildlife Act 1975
Repeal of Division 2
═══════════════
ENDNOTES
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131
132
132
134
135
135
136
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BILL LA INTRODUCTION 28/5/2014
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Native Vegetation Credit Market Bill
2014
A Bill for an Act to establish a native vegetation credit market, to
make consequential amendments to other Acts and for other purposes.
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The purposes of this Act are—
(a) to provide for the creation of native
vegetation credits; and
5
(b) to enable the Secretary to enter into native
vegetation management agreements with
land owners; and
(c) to enable vegetation improvement plans to
be prepared for certain Crown land; and
10
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s. 2
(d) to establish a Native Vegetation Credit
Register; and
(e) to set out the purposes for which native
vegetation credits may be used; and
5
(f) to provide for the transfer, suspension and
cancellation of native vegetation credits; and
(g) to establish a Native Vegetation Credit Fund;
and
(h) to enable requirements relating to native
vegetation management agreements and
native vegetation credits to be enforced; and
10
(i) to make consequential amendments to other
Acts.
2 Commencement
15
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 July 2015, it comes into
operation on that day.
20
3 Definitions
In this Act—
25
authorised officer means a person appointed as an
authorised officer by the Secretary under
Part 9 of the Conservation, Forests and
Lands Act 1987 for the purposes of this Act;
biodiversity class area means a part of a site that
is less than the area of that site and either—
(a) if section 5 does not apply to the site, in
which—
30
(i) there is the same number of
habitat importance scores and
those scores relate to the same
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Native Vegetation Credit Market Bill 2014
Part 1—Preliminary
species of rare or threatened flora
or fauna; or
(ii) if there are habitat importance
scores in any other part of the site,
there are no habitat importance
scores; or
5
(b) if section 5 applies to the site, in
which—
(i) there is the same number of
habitat importance scores that
relate to species of rare or
threatened flora or fauna in
relation to which the site has a
relative importance greater than
the threshold and those scores
relate to the same species of flora
or fauna; or
10
15
(ii) if there are habitat importance
scores that relate to species of rare
or threatened flora or fauna in
relation to which the site has a
relative importance greater than
the threshold in any other part of
the site, there are no such habitat
importance scores;
20
25
catchment and land protection region has the
same meaning as region has in the
Catchment and Land Protection Act 1994;
30
Central Plan Office means the Central Plan
Office maintained under the Survey
Co-ordination Act 1958;
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s. 3
Native Vegetation Credit Market Bill 2014
Part 1—Preliminary
s. 3
compatible purpose means any of the following
purposes—
(a) the preservation of areas of ecological
significance;
5
(b) carbon sequestration in vegetation and
soil;
(c) the preservation of species of native
plants;
(d) the propagation or management of
wildlife or the preservation of wildlife
habitat;
10
compatible reserve means Crown land—
(a) described in Schedule Two (National
Parks), Schedule Two A (Wilderness
Parks), Schedule Two B (State Parks)
and Parts 1A, 2A, 3, 6, 9 and 15 of
Schedule Three (Other Parks) to the
National Parks Act 1975; or
15
(b) permanently reserved under the Crown
Land (Reserves) Act 1978 for a
compatible purpose; or
20
(c) described in section 44 of the Crown
Land (Reserves) Act 1978;
25
corresponding alternate credit, in relation to a
native vegetation credit created for a site or a
biodiversity class area (the original credit),
means a native vegetation credit—
(a) that is or has been created for the same
site or biodiversity class area as the
original credit; and
30
(b) if the original credit is a general
biodiversity credit, that is a specific
biodiversity credit for that site or
biodiversity class area; and
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Part 1—Preliminary
(c) if the original credit is a specific
biodiversity credit, that is—
(i) a general biodiversity credit; or
(ii) a specific biodiversity credit
created in relation to a different
relevant species;
5
10
Crown land means land that is unalienated land of
the Crown and includes land of the Crown
reserved permanently or temporarily by or
under an Act;
Crown land manager, in relation to Crown land,
means the person or body responsible, under
the Act under which the land is managed, for
the management of that land;
15
fauna has the same meaning as in the Flora and
Fauna Guarantee Act 1988;
flora has the same meaning as in the Flora and
Fauna Guarantee Act 1988;
20
Fund means the Native Vegetation Credit Fund
established under section 84;
general biodiversity credit means a native
vegetation credit created using a calculation
of general gain;
25
30
general gain, in relation to a site, means the gain
calculated in accordance with section 34;
habitat importance score, in relation to a site or
biodiversity class area, means the importance
of that site or biodiversity class area as
habitat for an identified species of rare or
threatened flora or fauna, calculated in the
prescribed manner;
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s. 3
Native Vegetation Credit Market Bill 2014
Part 1—Preliminary
s. 3
Land Register means the Register kept under the
Transfer of Land Act 1958;
5
Melbourne Strategic Assessment Area means the
area prescribed for the purposes of this
definition;
native vegetation means any plant that is
indigenous to Victoria, whether vascular or
non-vascular and whether living or dead;
10
native vegetation credit means a native vegetation
credit created under Part 2 or Part 3;
Native Vegetation Credit Register means the
register of native vegetation credits
established under Part 6;
15
native vegetation management agreement means
an agreement entered into under Part 5;
native vegetation management agreement fee
means the fee payable under section 39;
nature and attributes, in relation to a native
vegetation credit, means—
20
(a) whether the credit is a general
biodiversity credit or a specific
biodiversity credit; and
(b) if the credit is a specific biodiversity
credit, the relevant species; and
25
(c) the details of any corresponding
alternate credits for that credit; and
(d) the strategic biodiversity score for the
site or biodiversity class area for which
the credit was created; and
30
(e) if the credit was created for a
biodiversity class area, a description of
the biodiversity class area; and
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(f) the catchment and land protection
region in which the site or biodiversity
class area for which the credit was
created is located; and
5
(g) any information prescribed for the
purposes of this definition;
noxious weed has the same meaning as in the
Catchment and Land Protection Act 1994;
10
15
offset condition means a requirement, imposed by
either a planning permit or a planning
scheme, that the removal, lopping or
destruction of native vegetation be offset;
owner, in relation to land, means the person who
is the registered proprietor (within the
meaning of the Transfer of Land Act 1958)
of the land;
planning permit means a planning permit issued
under the Planning and Environment
Act 1987;
20
planning scheme means a planning scheme made
under the Planning and Environment
Act 1987;
potential gain has the meaning set out in
section 6;
25
pre-existing credit means a credit identified by the
Order made under section 132 as existing
before the commencement of this Act;
private land means land under the Transfer of
Land Act 1958, other than—
30
(a) land in an identified folio under that
Act; or
(b) a lease of Crown land registered under
that Act;
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s. 3
Native Vegetation Credit Market Bill 2014
Part 1—Preliminary
s. 3
qualified assessor means—
(a) a person employed under Part 3 of the
Public Administration Act 2004 who
the Secretary authorises to act as a
qualified assessor for the purposes of
this Act; or
5
(b) a person who meets the criteria
prescribed for the purposes of this
definition;
10
Registrar of Native Vegetation Credits means the
Registrar employed for the purposes of this
Act;
Registrar of Titles means the Registrar of Titles
under the Transfer of Land Act 1958;
15
relevant Crown land Minister means—
(a) in relation to land reserved under the
Crown Land (Reserves) Act 1978 for
the propagation or management of
wildlife or the preservation of wildlife
habitat, the Minister administering the
Wildlife Act 1975; or
20
(b) in relation to land reserved under the
Crown Land (Reserves) Act 1978 for
a purpose other than the purpose
described in paragraph (a), the Minister
administering the Crown Land
(Reserves) Act 1978; or
25
(c) in relation to land managed under the
National Parks Act 1975, the Minister
administering that Act;
30
relevant land agreement, in relation to Crown
land, means any lease or licence of that land
made under the Act under which the land is
managed;
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relevant land management plan, in relation to
Crown land, means—
(a) a plan of management prepared for that
land under section 18 of the Wildlife
Act 1975; or
5
(b) a management plan prepared in respect
of that land under section 17, 17B or 18
of the National Parks Act 1975; or
(c) a joint management plan for that land
within the meaning of section 82A of
the Conservation, Forests and Lands
Act 1987;
10
15
20
25
relevant species, in relation to a specific
biodiversity credit, means the species of rare
or threatened flora or fauna that relates to the
habitat importance score used in the
calculation of the specific gain used in the
creation of that credit;
reservation gain, in relation to a site or
biodiversity class area on Crown land, means
any increase in the protections for native
vegetation on the site or biodiversity class
area that results from the site or biodiversity
class area being reserved for a compatible
purpose;
Secretary means the body corporate established
by Part 2 of the Conservation, Forests and
Lands Act 1987;
site means an area of land—
30
(a) that is subject to an application or
determination for the creation of native
vegetation credits; or
(b) for which native vegetation credits have
been created;
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Native Vegetation Credit Market Bill 2014
Part 1—Preliminary
s. 3
site management plan, in relation to land, means
the following information, in the prescribed
form—
(a) the requirements to improve the quality,
extent or both of the native vegetation
on the land that are proposed to be
carried out by or on behalf of the owner
of the land during the 10-year period
beginning on the day on which a native
vegetation management agreement
relating to the land comes into effect;
5
10
(b) the requirements to protect and
maintain the native vegetation on the
land during and after the period referred
to in paragraph (a);
15
(c) any other details prescribed for the
purposes of this definition;
specific biodiversity credit means a native
vegetation credit—
20
(a) that is created in relation to a site or
biodiversity class area that has one or
more habitat importance scores; and
(b) the creation of which uses a calculation
of specific gain;
25
30
specific gain, in relation to a site, means the gain
calculated in accordance with section 35;
strategic biodiversity score, in relation to a site or
biodiversity class area, means the importance
of that site or biodiversity class area for
Victoria's biodiversity, calculated in the
prescribed manner;
vegetation improvement plan means a plan
prepared under Division 5 of Part 3.
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4 Objects of Act
The objects of this Act are—
(a) to contribute to long-term biodiversity in
Victoria; and
5
(b) to balance the economic and environmental
considerations involved in the use and
development of land and the protection of
Victoria's native vegetation; and
(c) to facilitate an efficient and effective native
vegetation offset market in Victoria; and
10
(d) to contribute to the achievement of best
practice in relation to environmental
regulation in Victoria.
5 Habitat importance threshold test
15
(1) This section applies in relation to a site if an
application or determination for the creation of
native vegetation credits for that site does not
contain a statement described in section 9(3)(g),
17(3)(h), 18(3)(i) or 20(3)(h).
20
(2) If this section applies, a reference to a habitat
importance score for a site or biodiversity class
area includes only habitat importance scores that
relate to an identified species of rare or threatened
flora or fauna in relation to which the site has a
relative importance greater than the threshold.
25
(3) For the purposes of subsection (2)—
30
relative importance means the relative importance
of the site as habitat for an identified species
of rare or threatened flora or fauna as
determined in the prescribed manner; and
threshold means the prescribed threshold.
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s. 4
Native Vegetation Credit Market Bill 2014
Part 1—Preliminary
s. 6
6 Potential gain
In this Act, potential gain, in relation to a site or
biodiversity class area, means—
(a) if the site or a biodiversity class area is on
private land, the improvement in the quality,
extent or both of the native vegetation on
that site or biodiversity class area, calculated
by a qualified assessor in the prescribed
manner and taking into account criteria
prescribed for the purposes of this definition,
that is predicted to result from the
requirements specified in a site management
plan; or
5
10
(b) if the site or biodiversity class area is on
Crown land, either or both of the
following—
15
(i) any reservation gain;
(ii) the improvement in the quality, extent
or both of the native vegetation on that
site or biodiversity class area,
calculated by a qualified assessor in the
prescribed manner and taking into
account criteria prescribed for the
purposes of this definition, that is
predicted to result from the
requirements specified in a vegetation
improvement plan.
20
25
7 Native vegetation credits not personal property
30
For the purposes of section 8(1)(k) of the Personal
Property Securities Act 2009 of the
Commonwealth, a native vegetation credit is
declared not to be personal property.
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Part 1—Preliminary
8 Act binds the Crown
This Act binds the Crown—
(a) in right of the State of Victoria; and
(b) to the extent that the legislative power of the
Parliament permits, in all its other capacities.
5
__________________
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s. 8
Native Vegetation Credit Market Bill 2014
s. 9
Part 2—Creation of Native Vegetation Credits for Private Land
PART 2—CREATION OF NATIVE VEGETATION CREDITS
FOR PRIVATE LAND
Division 1—Application for native vegetation credits
9 Application for native vegetation credits
5
(1) An owner of private land may apply to the
Secretary for the creation of native vegetation
credits for all or part of that land.
(2) An application under subsection (1) must—
(a) be made in the form approved by the
Secretary; and
10
(b) be accompanied by the prescribed
application fee, if any.
(3) An application under subsection (1) must contain
the following—
15
(a) the name and address of the applicant;
(b) a description of the site;
(c) a site management plan for the site;
(d) an estimate, prepared by a qualified assessor,
of the reasonable costs of carrying out the
requirements specified in the site
management plan;
20
(e) if the site does not contain any biodiversity
class areas, the following information,
prepared by a qualified assessor, for the
site—
25
(i) the area;
(ii) the potential gain;
(iii) the strategic biodiversity score;
(iv) any habitat importance score or scores;
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Part 2—Creation of Native Vegetation Credits for Private Land
(f) if the site contains biodiversity class areas,
the following information, prepared by a
qualified assessor, for each biodiversity class
area—
5
(i) the area;
(ii) the potential gain;
(iii) the strategic biodiversity score;
(iv) any habitat importance score or scores;
(g) if section 5 is not to apply to the creation of
the native vegetation credits, a statement to
that effect;
10
(h) any information prescribed for the purposes
of this section.
10 Secretary may require further information
15
The Secretary may require an applicant to provide
any further information that the Secretary
considers necessary to determine an application.
11 Secretary may require application to be amended
20
25
(1) At any time after an application is made under
section 9 and before the application is accepted
under section 12, the Secretary may by notice
require the applicant to amend the application if
the Secretary considers it necessary to do so to
ensure the application is correct.
(2) If an applicant receives notice from the Secretary
under subsection (1), the applicant may—
(a) amend the application and resubmit it,
accompanied by the prescribed fee, if any; or
(b) withdraw the application.
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Native Vegetation Credit Market Bill 2014
s. 12
Part 2—Creation of Native Vegetation Credits for Private Land
12 Secretary to accept, amend or reject application
(1) If the Secretary receives an application under
section 9, the Secretary must—
(a) accept the application; or
5
(b) require the applicant to amend the
application under section 11; or
(c) reject the application.
(2) The Secretary must reject an application if—
(a) the application does not comply with
section 9(2) or (3); or
10
(b) the applicant does not provide any further
information required under section 10; or
15
(c) the Secretary considers that the estimate
provided under section 9(3)(d) is not
reasonable; or
20
(d) the site management plan contained in the
application requires the owner of the site to
carry out works or activities that the owner
of the site is required to carry out by or
under—
(i) any Act; or
(ii) a prescribed agreement or arrangement;
or
(e) the site does not meet any eligibility criteria
prescribed for the purposes of this section.
25
30
(3) In accepting an application, the Secretary may
amend the potential gain from that contained in
the application if the Secretary considers it
necessary to do so to ensure that the potential gain
is accurate.
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Part 2—Creation of Native Vegetation Credits for Private Land
(4) The Secretary must notify the applicant of the
acceptance or rejection of an application, and of
any amendment under subsection (3) of the
potential gain.
5
(5) Notification of the acceptance of an application
must include—
(a) the number of native vegetation credits to be
created; and
(b) the nature and attributes of those credits.
10
15
Notes
1
A decision to reject an application or to amend the potential
gain is a reviewable decision for the purposes of Division 7 of
Part 11.
2
The number of native vegetation credits to be created is
determined under Part 4 of this Act.
13 Offence to provide false or misleading information
or document
20
A person must not in, or in relation to, an
application under section 9 for native vegetation
credits—
(a) give any information that the person knows,
or should reasonably know, is false or
misleading in a material particular; or
(b) produce a document that the person knows,
or should reasonably know, is false or
misleading in a material particular, without
informing the person to whom the document
is produced of the defect in the document.
25
Penalty: 120 penalty units.
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s. 14
Part 2—Creation of Native Vegetation Credits for Private Land
Division 2—Recording of native vegetation credits
14 Native vegetation credits must be recorded
5
(1) If an application for the creation of native
vegetation credits is accepted under section 12,
the Secretary must lodge with the Registrar of
Native Vegetation Credits a notification for the
recording of those credits.
(2) A notification under subsection (1) must
contain—
10
(a) the number of native vegetation credits to be
created; and
(b) the nature and attributes of those credits.
Note
15
The number of native vegetation credits to be created is
determined under Part 4 of this Act.
(3) The Secretary must not lodge a notification for the
recording of native vegetation credits under
subsection (1) unless—
(a) the Secretary enters into a native vegetation
management agreement under section 36(1)
in relation to the site for which the credits are
created; and
20
(b) that native vegetation management
agreement is recorded in the Land Register
under section 37(2).
25
(4) A native vegetation credit is created under this
Part when the credit is recorded in the Native
Vegetation Credit Register.
30
(5) A native vegetation credit created under this Part
cannot be allocated under Part 7 or transferred
under Part 8 unless the credit is recorded in the
Native Vegetation Credit Register.
__________________
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Part 3—Creation of Native Vegetation Credits for Crown land
PART 3—CREATION OF NATIVE VEGETATION CREDITS
FOR CROWN LAND
Division 1—General
15 Holder of credits created under Part 3
5
For the purposes of section 50(2)(a), the Minister
is the holder of a native vegetation credit created
under this Part, unless—
(a) the credit is transferred under Part 8; or
(b) the credit is created as consideration for the
transfer of land purchased under Division 4.
10
Division 2—Creation of native vegetation credits for Crown
land
16 When native vegetation credits can be created for
Crown land
15
Native vegetation credits may be created for
Crown land if—
(a) the land is permanently reserved under the
Crown Land (Reserves) Act 1978 for a
compatible purpose and the land was
unreserved immediately before that
reservation; or
20
(b) a vegetation improvement plan is approved
for a compatible reserve; or
(c) the land is purchased under this Act and
permanently reserved under the Crown
Land (Reserves) Act 1978 for a compatible
purpose.
25
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Native Vegetation Credit Market Bill 2014
s. 17
Part 3—Creation of Native Vegetation Credits for Crown land
17 Creation of native vegetation credits for unreserved
Crown land
(1) This section applies to a site on Crown land that—
(a) is unreserved Crown land; and
5
10
(b) is proposed to be permanently reserved
under the Crown Land (Reserves) Act 1978
for a compatible purpose.
(2) Subject to this section, the Minister may, by
determination, create native vegetation credits for
a site on Crown land with the consent of the
Minister administering the Crown Land
(Reserves) Act 1978.
(3) A determination under this section must include
the following—
15
(a) a description of the site for which the native
vegetation credits are created;
(b) details of the proposed reservation of the
site, including the purpose of the proposed
reservation;
20
(c) if a vegetation improvement plan has been
prepared for the site—
(i) a copy of that plan; and
(ii) a reasonable estimate, calculated by a
qualified assessor, of the costs to the
Crown land manager of carrying out the
requirements specified in the plan; and
25
(iii) an approval under section 29 for the
plan;
(d) if the site does not contain any biodiversity
class areas, the following information,
prepared by a qualified assessor, for the
site—
30
(i) the area;
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Part 3—Creation of Native Vegetation Credits for Crown land
(ii) the potential gain;
(iii) the strategic biodiversity score;
(iv) any habitat importance score or scores;
(e) if the site contains biodiversity class areas,
the following information, prepared by a
qualified assessor, for each biodiversity class
area—
5
(i) the area;
(ii) the potential gain;
10
(iii) the strategic biodiversity score;
(iv) any habitat importance score or scores;
(f) the number of credits to be created;
(g) the nature and attributes of those credits;
(h) if section 5 is not to apply to the creation of
the native vegetation credits, a statement to
that effect;
15
(i) any information prescribed for the purposes
of this section.
Note
20
The number of native vegetation credits to be created is
determined under Part 4 of this Act.
(4) Before making a determination under
subsection (2), the Minister must be satisfied
that—
25
(a) the proposed reservation of the land would
provide a reservation gain for the site; and
(b) any vegetation improvement plan to be
included in the determination does not
require the Crown land manager to carry out
works or activities that the Crown land
manager is required to carry out by or
under—
30
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Part 3—Creation of Native Vegetation Credits for Crown land
(i) any Act; or
(ii) a prescribed agreement or arrangement;
and
(c) the site meets any eligibility criteria
prescribed for the purposes of this section.
5
(5) A determination under this section takes effect
when the site is reserved as proposed under
subsection (3)(b).
10
18 Creation of native vegetation credits for reserved
Crown land
(1) This section applies to a site on Crown land—
(a) that is a compatible reserve; and
(b) for which a vegetation improvement plan has
been approved under section 29.
15
20
(2) Subject to this section, the Minister may, by
determination, create native vegetation credits for
a site on Crown land with the consent of the
relevant Crown land Minister.
(3) A determination under this section must include
the following—
(a) a description of the site for which the native
vegetation credits are created;
(b) details of the reservation of the site,
including any purpose of the reservation;
25
(c) a copy of the vegetation improvement plan
that has been approved for the site;
(d) a reasonable estimate, calculated by a
qualified assessor, of the costs to the Crown
land manager of carrying out the
requirements specified in the proposed
vegetation improvement plan;
30
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(e) if the site does not contain any biodiversity
class areas, the following information,
prepared by a qualified assessor, for the
site—
5
(i) the area;
(ii) the potential gain;
(iii) the strategic biodiversity score;
(iv) any habitat importance score or scores;
(f) if the site contains biodiversity class areas,
the following information, prepared by a
qualified assessor, for each biodiversity class
area—
10
(i) the area;
(ii) the potential gain;
15
(iii) the strategic biodiversity score;
(iv) any habitat importance score or scores;
(g) the number of credits to be created;
(h) the nature and attributes of those credits;
(i) if section 5 does not apply to the creation of
the native vegetation credits, a statement to
that effect;
20
(j) any information prescribed for the purposes
of this section.
Note
25
The number of native vegetation credits to be created is
determined under Part 4 of this Act.
(4) Before making a determination under
subsection (2), the Minister must be satisfied
that—
30
(a) the vegetation improvement plan included in
the determination does not require the Crown
land manager to carry out works or activities
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Native Vegetation Credit Market Bill 2014
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Part 3—Creation of Native Vegetation Credits for Crown land
that the Crown land manager is required to
carry out by or under—
(i) any Act; or
(ii) a prescribed agreement or arrangement;
and
5
(b) the site meets any eligibility criteria
prescribed for the purposes of this section.
(5) A determination under this section takes effect
when it is made.
10
15
19 Native vegetation credits must be recorded
(1) If the Minister makes a determination under this
Division to create native vegetation credits, the
Minister must lodge with the Registrar of Native
Vegetation Credits a notification for the recording
of those credits.
(2) A notification under subsection (1) must
include—
(a) the number of native vegetation credits to be
created; and
20
(b) the nature and attributes of those credits.
Note
The number of native vegetation credits to be created is
determined under Part 4 of this Act.
25
30
(3) A native vegetation credit is created under this
Division when the credit is recorded in the Native
Vegetation Credit Register.
(4) A native vegetation credit created under this
Division cannot be allocated under Part 7 or
transferred under Part 8 unless the credit is
recorded in the Native Vegetation Credit Register.
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Part 3—Creation of Native Vegetation Credits for Crown land
Division 3—Application for native vegetation credits prior to
purchase of land
20 Application for native vegetation credits with
Ministerial consent
5
10
(1) If the Minister proposes to purchase private land
under Division 4 and that land is proposed to be
reserved for a compatible purpose, the owner of
the land may, with the consent of the Minister and
the Minister administering the Crown Land
(Reserves) Act 1978, apply to the Secretary for
the creation of native vegetation credits for all or
part of the land.
(2) An application under subsection (1) must—
(a) be made in the form approved by the
Secretary; and
15
(b) be accompanied by the prescribed
application fee, if any.
(3) An application under subsection (1) must contain
the following—
20
(a) the name and address of the applicant;
(b) a description of the site for which the native
vegetation credits are to be created;
(c) details of the proposed reservation of the
site, including the purpose of the proposed
reservation;
25
(d) the name of the proposed Crown land
manager;
(e) if a vegetation improvement plan has been
prepared for the site—
30
(i) a copy of that plan; and
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Native Vegetation Credit Market Bill 2014
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Part 3—Creation of Native Vegetation Credits for Crown land
(ii) a reasonable estimate, calculated by a
qualified assessor, of the costs to the
proposed Crown land manager of
carrying out the requirements specified
in the plan; and
5
(iii) an approval under section 29 for the
plan;
(f) if the site does not contain any biodiversity
class areas, the following information,
prepared by a qualified assessor, for the
site—
10
(i) the area;
(ii) the potential gain;
(iii) the strategic biodiversity score;
15
(iv) any habitat importance score or scores;
(g) if the site contains biodiversity class areas,
the following information, prepared by a
qualified assessor, for each biodiversity class
area—
20
(i) the area;
(ii) the potential gain;
(iii) the strategic biodiversity score;
(iv) any habitat importance score or scores;
(h) if section 5 is not to apply to the creation of
the native vegetation credits, a statement to
that effect;
25
(i) any information prescribed for the purposes
of this section.
21 Secretary may require further information
30
The Secretary may require an applicant to provide
any further information that the Secretary
considers necessary to determine an application.
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22 Secretary may require application to be amended
5
(1) At any time after an application is made under
section 20 and before the application is accepted
under section 23, the Secretary may by notice
require the applicant to amend the application if
the Secretary considers it necessary to do so to
ensure the application is correct.
(2) If an applicant receives notice from the Secretary
under subsection (1), the applicant may—
10
(a) amend the application and, with the consent
of the Minister and the Minister
administering the Crown Land (Reserves)
Act 1978, resubmit it, accompanied by the
prescribed fee, if any; or
15
(b) withdraw the application.
23 Secretary must accept, amend or reject application
(1) If the Secretary receives an application under
section 20(1), the Secretary must—
(a) accept the application; or
20
(b) require the applicant to amend the
application under section 22; or
(c) reject the application.
(2) The Secretary must reject an application if—
(a) the application does not comply with
section 20(2) or (3); or
25
(b) the applicant does not provide any further
information required under section 21; or
(c) the proposed reservation is not for a
compatible purpose; or
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Native Vegetation Credit Market Bill 2014
s. 23
Part 3—Creation of Native Vegetation Credits for Crown land
(d) the Secretary considers that the estimate
provided under section 20(3)(e)(ii) is not
reasonable; or
(e) any vegetation improvement plan contained
in the application requires the proposed
Crown land manager to carry out works or
activities that the proposed Crown land
manager is, following the transfer of the
land, required to carry out by or under—
5
10
(i) any Act; or
(ii) a prescribed agreement or arrangement;
or
(f) the site does not meet any eligibility criteria
prescribed for the purposes of this section.
15
(3) In accepting an application, the Secretary may
amend the potential gain from that contained in
the application if the Secretary considers it
necessary to do so to ensure that the potential gain
is accurate.
20
(4) The Secretary must notify the applicant of the
acceptance or rejection of an application, and of
any amendment under subsection (3) of the
potential gain.
25
(5) Notification of the acceptance of an application
must include—
(a) the number of native vegetation credits to be
created on the transfer of the land; and
(b) the nature and attributes of those credits.
Note
30
The number of native vegetation credits to be created is
determined under Part 4 of this Act.
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Part 3—Creation of Native Vegetation Credits for Crown land
Division 4—Purchase of land
24 Agreement for the purchase of land
5
10
(1) If the Secretary accepts an application under
section 23, the Minister on behalf of the Crown
may enter into an agreement with the owner of the
land described in the application for the purchase
of that land if the Minister considers that the land
is suitable to be reserved for the compatible
purpose specified in the application.
(2) An agreement entered into under subsection (1)—
(a) must provide for the purchase price of the
land; and
(b) subject to subsection (3), may provide for
some or all of the consideration for the
owner to be native vegetation credits created
for the land; and
15
(c) may contain provisions requiring the owner
of the land to contribute to the cost to the
Crown land manager of managing the land
after the land has been purchased.
20
25
30
(3) A native vegetation credit provided to the owner
of land as consideration for the transfer of that
land under this Division must not be a
corresponding alternate credit of any native
vegetation credit that is to be held by the Minister
after that transfer.
(4) The provision of native vegetation credits to the
owner of land as consideration for the purchase of
land by agreement under subsection (2)(b) is not a
transfer of those credits for the purposes of this
Act.
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Native Vegetation Credit Market Bill 2014
s. 25
Part 3—Creation of Native Vegetation Credits for Crown land
25 Land purchased under this Part taken to be
reserved
On the transfer of land purchased under section 24
to the Crown, the land is taken to be—
5
(a) unalienated land of the Crown; and
(b) permanently reserved under section 4(1) of
the Crown Land (Reserves) Act 1978 for
the purpose described in the application
under section 20 made in relation to the land.
10
15
26 Notification of purchase
(1) When land purchased under section 24 is
transferred to the Crown, the Minister must lodge
with the Registrar of Native Vegetation Credits a
notification for the recording of the native
vegetation credits.
(2) A notification under subsection (1) must
include—
(a) in relation to the native vegetation credits to
be created for the land—
20
(i) the number of those credits to be held
by the transferor of land; and
(ii) the number of those credits to be held
by the Minister; and
(b) the nature and attributes of those credits.
25
Note
The number of native vegetation credits to be created is
determined under Part 4 of this Act.
30
(3) A native vegetation credit is created under this
Division when the credit is recorded in the Native
Vegetation Credit Register.
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(4) A native vegetation credit created under this
Division cannot be allocated under Part 7 or
transferred under Part 8 unless the credit is
recorded in the Native Vegetation Credit Register.
5
27 Publication of purchase
(1) Within 5 days after the transfer of land purchased
under section 24, the Minister must publish a
notice of that transfer in the Government Gazette.
(2) A notice under subsection (1) must contain—
10
(a) a description of the land that has been
transferred; and
(b) the date of the transfer; and
(c) the purpose for which the land is reserved;
and
15
(d) a statement that on and from the date of the
transfer, the land is taken to be permanently
reserved under section 4(1) of the Crown
Land (Reserves) Act 1978 for that purpose.
Division 5—Vegetation improvement plans
20
28 Preparation of vegetation improvement plans
(1) Subject to this Division, the Crown land manager
may, with the approval of the relevant Crown land
Minister, prepare a vegetation improvement plan
in relation to an area of Crown land—
25
(a) that is a compatible reserve or proposed to be
reserved for a compatible purpose; and
(b) for which native vegetation credits are
proposed to be created.
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Native Vegetation Credit Market Bill 2014
s. 29
5
Part 3—Creation of Native Vegetation Credits for Crown land
(2) Subject to this Division, the proposed Crown land
manager for land that is proposed to be subject to
an application under section 20 may, with the
approval of the Minister administering the Crown
Land (Reserves) Act 1978, prepare a vegetation
improvement plan in relation to that land.
(3) A vegetation improvement plan prepared under
subsection (1) or (2) must—
(a) include details of the management,
improvement and protection of the native
vegetation on the land during the 10-year
period beginning on the day the plan comes
into effect; and
10
(b) include any details prescribed for the
purposes of this section; and
15
(c) if the plan is prepared under subsection (1),
be consistent with any relevant land
management plan or relevant land agreement
that applies to the land.
20
(4) A vegetation improvement plan must be in the
prescribed form.
29 Approval of vegetation improvement plan
25
A vegetation improvement plan prepared under
section 28 is approved for the purposes of
section 30 if—
(a) the plan complies with section 28(3) and (4);
and
(b) the Minister approves the plan; and
(c) in the case of a plan prepared for Crown land
that is a compatible reserve, the relevant
Crown land Minister approves the plan.
30
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30 Period during which vegetation improvement plan
has effect
(1) A vegetation improvement plan approved under
section 29 comes into effect—
5
(a) in the case of land for which native
vegetation credits are created by
determination under section 17(2), the date
that determination comes into effect; or
(b) in the case of land for which native
vegetation credits are created by
determination under section 18(2), the date
that determination comes into effect; or
10
(c) in the case of land purchased under this Act,
the date the land is transferred to the Crown.
15
20
(2) Within 28 days after a vegetation improvement
plan takes effect, the Crown land manager must
ensure that the vegetation improvement plan is
lodged with the Central Plan Office.
(3) A vegetation improvement plan ceases to have
effect 10 years after the date the plan came into
effect.
31 Variation of vegetation improvement plans
25
(1) A vegetation improvement plan approved under
section 29 may be varied by the Minister and the
relevant Crown land Minister if—
(a) the Minister and the relevant Crown land
Minister are satisfied that the varied plan
does not reduce the improvements or
protections for native vegetation provided in
the plan before it was varied; or
30
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Part 3—Creation of Native Vegetation Credits for Crown land
(b) the Minister provides an equivalent reduction
in credits by—
5
(i) cancelling credits held by the Minister
created for the land subject to the plan
that are not allocated; and
10
(ii) if the Minister does not hold sufficient
credits created for that land to provide
all or some of the equivalent reduction,
allocating credits for the purposes of
this subsection.
15
(2) If the Minister must provide an equivalent
reduction under subsection (1)(b), the number of
general biodiversity credits that must be cancelled
is to be calculated in accordance with the
formula—
RGG × 1000
where—
RGG is the reduction in general gain for the site
calculated in accordance with subsection (4).
20
25
(3) If the Minister must provide an equivalent
reduction under subsection (1)(b), the number of
specific biodiversity credits that must be cancelled
is to be calculated in accordance with the
formula—
RSpG × 1000
where—
RSpG is the reduction in specific gain for the site,
calculated in accordance with subsection (5).
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(4) For the purposes of subsection (2), the reduction
in general gain for the site that is subject to the
vegetation improvement plan is calculated in
accordance with the formula—
5
OGG – VGG
where—
10
OGG is the general gain for the site calculated in
accordance with section 34 using the
information included in the determination or
application for the creation of the native
vegetation credits;
VGG is the general gain for the site calculated in
accordance with section 34 using—
(a) subject to paragraph (b), the
information included in the
determination or application for the
creation of the credits; and
15
(b) the information in the plan as proposed
to be varied.
20
(5) For the purposes of subsection (3), the reduction
in specific gain for the site that is subject to the
vegetation improvement plan is calculated in
accordance with the formula—
OSpG – VSpG
25
30
where—
OSpG is the specific gain for the site calculated in
accordance with section 35 using the
information included in the determination or
application for the creation of the native
vegetation credits;
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Part 3—Creation of Native Vegetation Credits for Crown land
VSpG is the specific gain for the site calculated in
accordance with section 35 using—
(a) subject to paragraph (b), the
information included in the
determination or application for the
creation of the credits; and
5
(b) the information in the plan as proposed
to be varied.
10
(6) If the Minister does not hold a sufficient number
of native vegetation credits created for the land
subject to the vegetation improvement plan to
provide for all or some of an equivalent reduction
by cancellation under subsections (2) and (3), the
Minister must allocate the following—
15
(a) the number of general biodiversity credits
calculated in accordance with the formula—
XG – CG
where—
XG is the number of general biodiversity
credits that must be cancelled
calculated in accordance with
subsection (2);
20
CG is the number of general biodiversity
credits created for the land that are held
by the Minister; and
25
(b) the number of specific biodiversity credits
calculated in accordance with the formula—
Xsp – Csp
where—
30
Xsp is the number of specific biodiversity
credits that must be cancelled
calculated in accordance with
subsection (3);
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Csp is the number of specific biodiversity
credits created for the land that are held
by the Minister.
5
10
(7) For the purposes of subsection (6), if native
vegetation credits created for the land that is
subject to the vegetation improvement plan that
are held by the Minister have been allocated or
transferred after the plan came into effect and all
or part of an equivalent reduction is to be provided
for by the allocation of credits, the following
credits may be allocated—
(a) if general biodiversity credits created for that
land have been allocated, transferred or
provided to an owner of land under
Division 4, up to the same number of general
biodiversity credits;
15
(b) if specific biodiversity credits created in
relation to a relevant species for that land
have been allocated, transferred or provided
to an owner of land under Division 4, up to
the same number of specific biodiversity
credits created in relation to the same
relevant species.
20
25
(8) If native vegetation credits are allocated for the
purposes of subsection (6)—
(a) for the purposes of section 66, that
allocation is taken to be an allocation
under section 63 of credits created for the
site or a biodiversity area on the land that is
subject to the vegetation improvement plan
(the original credits); and
30
(b) the cancellation under section 66(1) of the
corresponding alternate credits of those
original credits is taken to be an allocation of
credits for the purposes of subsection (6).
35
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Native Vegetation Credit Market Bill 2014
s. 32
5
10
Part 3—Creation of Native Vegetation Credits for Crown land
(9) If any or all native vegetation credits created for a
site or biodiversity area other than the site or
biodiversity class area subject to the vegetation
improvement plan are allocated for the purposes
of subsection (6), the same proportion of
corresponding alternate credits created for that site
or biodiversity class area is cancelled.
(10) Within 28 days after a vegetation improvement
plan is varied, the Crown land manager must
ensure that a consolidated copy of the plan that
incorporates the variation is lodged with the
Central Plan Office.
32 Recording of cancellation or allocation of credits
under section 31
15
20
(1) If the Minister provides for the cancellation or
allocation of native vegetation credits under
section 31, the Minister must lodge with the
Registrar of Native Vegetation Credits a
notification for the recording of the cancellation or
allocation.
(2) On the lodgement of a notification under
subsection (1), the Registrar of Native Vegetation
Credits must record the cancellation or allocation
in the Native Vegetation Credit Register.
25
(3) The cancellation or allocation of a native
vegetation credit under section 31 takes effect
when it is recorded in the Native Vegetation
Credit Register.
__________________
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Native Vegetation Credit Market Bill 2014
Part 4—Calculation of Native Vegetation Credits
PART 4—CALCULATION OF NATIVE VEGETATION
CREDITS
33 Calculation of native vegetation credits that may be
created in relation to a site
5
(1) The number of general biodiversity credits that
may be created in relation to a site is to be
calculated in accordance with the formula—
GG × 1000
where—
10
GG is the general gain for that site calculated
under section 34.
(2) The number of specific biodiversity credits that
may be created in relation to a site is to be
calculated in accordance with the formula—
15
SpG × 1000
where—
SpG is the specific gain for that site calculated
under section 35.
34 Calculation of general gain for a site
20
(1) If a site does not contain any biodiversity class
areas, the general gain (expressed in general
biodiversity equivalence units) for that site is to be
calculated in accordance with the formula—
AS × PGS × SBSs
25
where—
AS is the area (in hectares) of the site;
PGS is the potential gain for the site;
SBSS is the strategic biodiversity score for the site.
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Native Vegetation Credit Market Bill 2014
s. 35
5
Part 4—Calculation of Native Vegetation Credits
(2) If a site contains biodiversity class areas, the
general gain (expressed in general biodiversity
equivalence units) for the site is the sum of the
amounts calculated in accordance with the
following formula for each biodiversity class
area—
ABCA × PGBCA × SBSBCA
where—
10
ABCA is the area (in hectares) of the biodiversity
class area;
PGBCA is the potential gain for the biodiversity class
area;
SBSBCA is the strategic biodiversity score for the
biodiversity class area.
15
20
35 Calculation of specific gain for a site
(1) If a site that does not contain any biodiversity
class areas has a habitat importance score, the
specific gain (expressed in specific biodiversity
equivalence units) for that site is to be calculated
in accordance with the formula—
As × PGs × HISS,sp
where—
AS is the area (in hectares) of the site;
PGS is the potential gain for the site;
25
HISS,sp is the habitat importance score for the site
that relates to an identified species of rare or
threatened flora or fauna.
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Native Vegetation Credit Market Bill 2014
Part 4—Calculation of Native Vegetation Credits
5
(2) If a site that does not contain any biodiversity
class areas has more than one habitat importance
score, the specific gain (expressed in specific
biodiversity equivalence units) for the site is the
sum of the specific gain calculated for each
habitat importance score in accordance with the
formula—
As × PGs × HISS,sp
where—
10
AS is the area (in hectares) of the site;
PGS is the potential gain for the site;
HISS,sp is a habitat importance score for the site that
relates to an identified species of rare or
threatened flora or fauna.
15
(3) If a site contains biodiversity class areas, the
specific gain (expressed in specific biodiversity
equivalence units) for the site is the sum of the
following—
(a) for each biodiversity class area with one
habitat importance score, the specific gain
calculated in accordance with the formula—
20
ABCA × PGBCA × HISBCA,sp
where—
ABCA is the area (in hectares) of the
biodiversity class area;
25
PGBCA is the potential gain for the biodiversity
class area;
30
HISBCA,sp is the habitat importance score of the
biodiversity class area that relates to an
identified species of rare or threatened
flora or fauna;
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Native Vegetation Credit Market Bill 2014
s. 35
Part 4—Calculation of Native Vegetation Credits
(b) for each biodiversity class area with more
than one habitat importance score, the
specific gain calculated in accordance with
the following formula for each habitat
importance score of that biodiversity class
area—
5
ABCA × PGBCA × HISBCA,sp
where—
ABCA is the area (in hectares) of the
biodiversity class area;
10
PGBCA is the potential gain for the biodiversity
class area;
15
HISBCA,sp is a habitat importance score of the
biodiversity class area that relates to an
identified species of rare or threatened
flora or fauna.
__________________
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BILL LA INTRODUCTION 28/5/2014
Native Vegetation Credit Market Bill 2014
Part 5—Native Vegetation Management Agreements with Owners of Private
Land
PART 5—NATIVE VEGETATION MANAGEMENT
AGREEMENTS WITH OWNERS OF PRIVATE LAND
36 Native vegetation management agreements
5
(1) For the purposes of this Act, the Secretary may
enter into a native vegetation management
agreement with an owner of private land.
(2) Subject to subsection (3), a native vegetation
management agreement must contain—
(a) any terms and conditions prescribed for the
purposes of this section; and
10
(b) any additional terms and conditions agreed
between the Secretary and the owner of the
land that is subject to the agreement; and
(c) a site management plan for the land.
15
20
(3) If the land to which a native vegetation
management agreement relates is subject to an
application under section 9 that has been accepted
by the Secretary, the site management plan
included in the agreement must be the site
management plan contained in that application.
(4) A native vegetation management agreement may
include terms or conditions relating to any of the
following—
(a) the quality and extent of native vegetation on
the land and the management, improvement
and protection of that native vegetation while
the native vegetation management agreement
is in force;
25
(b) the use of the land;
30
(c) the works or activities that may be carried
out on the land and any conditions to which
those works or activities are subject;
(d) works or activities that must not be carried
out on the land;
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Native Vegetation Credit Market Bill 2014
s. 37
Part 5—Native Vegetation Management Agreements with Owners of Private
Land
(e) requirements relating to any of the matters
described in paragraphs (a) to (d).
(5) A native vegetation management agreement
comes into effect on the latest of—
5
(a) the day on which the last of the parties to the
agreement signs the agreement; and
(b) if native vegetation credits are to be created
for the land subject to the agreement, the day
on which all persons (other than the owner of
the land) who have a registered interest in
that land have consented in writing to be
bound by the agreement; and
10
(c) the day on which the native vegetation
management agreement fee, if any, is paid
under section 39(1).
15
(6) A native vegetation management agreement is
binding on—
(a) the parties to the agreement; and
(b) any person who has consented in writing to
be bound by the agreement.
20
37 Recording of native vegetation management
agreements
25
30
(1) Subject to subsections (3) and (4), if the Secretary
enters into a native vegetation management
agreement relating to land for which native
vegetation credits are not created, the Secretary
may apply to the Registrar of Titles to record the
agreement on any folio of the Land Register for
land that is subject to the agreement.
(2) Subject to subsections (3) and (4), if the Secretary
enters into a native vegetation management
agreement relating to land for which native
vegetation credits are to be created, the Secretary
must apply to the Registrar of Titles to record the
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Native Vegetation Credit Market Bill 2014
Part 5—Native Vegetation Management Agreements with Owners of Private
Land
agreement on any folio of the Land Register for
land that is subject to the agreement.
5
(3) Subsections (1) and (2) do not apply unless and
until the owner of the land that is subject to the
native vegetation management agreement pays the
Secretary any fee payable by the Secretary for the
recording of the agreement in the Land Register.
Note
10
Fees to the Registrar of Titles are payable under the
Transfer of Land Act 1958.
(4) Subsections (1) and (2) do not apply unless and
until the native vegetation management agreement
fee under section 39(1), if any, for the agreement
has been paid.
15
(5) An application under this section must—
(a) be in a form approved by the Registrar of
Titles under the Transfer of Land Act
1958; and
(b) be accompanied by a copy of the native
vegetation management agreement.
20
(6) The Registrar of Titles may record the native
vegetation management agreement in the Land
Register if the application complies with
subsection (5).
25
30
38 Effect of recording of agreement
In addition to section 36, on and after the
recording of a native vegetation management
agreement in the Land Register, any requirement
specified in the agreement runs with the land
affected and is binding on any person who derives
title to an estate or interest in the land from a party
to the agreement.
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Native Vegetation Credit Market Bill 2014
s. 39
Part 5—Native Vegetation Management Agreements with Owners of Private
Land
39 Native vegetation management agreement fee
5
10
15
20
(1) An owner of land who enters into a native
vegetation management agreement must, at the
time when that agreement is entered into, pay the
prescribed native vegetation management
agreement fee, if any, to the Secretary.
(2) If a native vegetation management agreement is
cancelled during the 10-year period beginning on
the day on which the agreement comes into effect,
the Secretary must refund to the person who paid
the fee the proportion of the native vegetation
management agreement fee relating to the
remainder of that period after the cancellation.
40 Variation of agreements relating to land for which
credits are created
(1) If a native vegetation management agreement
relates to land for which native vegetation credits
are created, on application by the owner of that
land, the Secretary may vary the agreement if the
Secretary is satisfied that—
(a) the agreement as proposed to be varied does
not reduce the improvements or protections
for native vegetation provided in the
agreement without variation; or
25
(b) the owner of the land subject to the
agreement provides an equivalent reduction
in native vegetation credits by—
30
(i) cancelling credits held by the owner
created for the land subject to the
agreement that are not allocated; and
35
(ii) if the owner does not hold sufficient
credits created for that land to provide
all or some of the equivalent reduction,
allocating credits for the purposes of
this subsection.
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Part 5—Native Vegetation Management Agreements with Owners of Private
Land
5
(2) If the owner of the land that is subject to the
native vegetation management agreement must
provide an equivalent reduction under
subsection (1)(b), the number of general
biodiversity credits that must be cancelled is to be
calculated in accordance with the formula—
RGG × 1000
where—
10
15
RGG is the reduction in general gain for the site
calculated in accordance with subsection (4).
(3) If the owner of the land that is subject to the
native vegetation management agreement must
provide an equivalent reduction under
subsection (1)(b), the number of specific
biodiversity credits that must be cancelled is to be
calculated in accordance with the formula—
RSpG × 1000
where—
20
RSpG is the reduction in specific gain for the site,
calculated in accordance with subsection (5).
(4) For the purposes of subsection (2), the reduction
in general gain for the site that is subject to the
native vegetation management agreement is
calculated in accordance with the formula—
25
OGG – VGG
where—
30
OGG is the general gain for the site calculated in
accordance with section 34 using the
information contained in the application for
the creation of the native vegetation credits;
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Native Vegetation Credit Market Bill 2014
s. 40
Part 5—Native Vegetation Management Agreements with Owners of Private
Land
VGG is the general gain for the site calculated in
accordance with section 34 using—
(a) subject to paragraph (b), the
information contained in the application
for the creation of the credits; and
5
(b) the information in the agreement as
proposed to be varied.
10
(5) For the purposes of subsection (3), the reduction
in specific gain for the site that is subject to the
native vegetation management agreement is
calculated in accordance with the formula—
OSpG - VSpG
where—
15
OSpG is the specific gain for the site calculated in
accordance with section 35 using the
information contained in the application for
the creation of the native vegetation credits;
VSpG is the specific gain for the site calculated in
accordance with section 35 using—
20
(a) subject to paragraph (b), the
information contained in the application
for the creation of the credits; and
(b) the information in the agreement as
proposed to be varied.
25
30
(6) If the owner of the land subject to the native
vegetation management agreement does not hold a
sufficient number of native vegetation credits
created for that land to provide for all or some of
an equivalent reduction by cancellation under
subsections (2) and (3), the owner must allocate
the following—
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Part 5—Native Vegetation Management Agreements with Owners of Private
Land
(a) the number of general biodiversity credits
calculated in accordance with the formula—
XG – CG
where—
5
XG is the number of general biodiversity
credits that must be cancelled
calculated in accordance with
subsection (2);
CG is the number of general biodiversity
credits created for the land that are held
by the owner; and
10
(b) the number of specific biodiversity credits
calculated in accordance with the formula—
Xsp – Csp
15
where—
Xsp is the number of specific biodiversity
credits that must be cancelled
calculated in accordance with
subsection (3);
20
25
30
Csp is the number of specific biodiversity
credits created for the land that are held
by the owner.
(7) For the purposes of subsection (6), if native
vegetation credits created for the land that is
subject to the native vegetation management
agreement have been allocated or transferred after
the agreement came into effect and all or part of
an equivalent reduction is to be provided for by
the allocation of credits, the following credits may
be allocated—
(a) if general biodiversity credits created for that
land have been allocated or transferred, up to
the same number of general biodiversity
credits;
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Native Vegetation Credit Market Bill 2014
s. 40
Part 5—Native Vegetation Management Agreements with Owners of Private
Land
(b) if specific biodiversity credits created in
relation to a relevant species for that land
have been allocated or transferred, up to the
same number of specific biodiversity credits
created in relation to the same relevant
species.
5
(8) If native vegetation credits are allocated for the
purposes of subsection (6)—
(a) for the purposes of section 66, that allocation
is taken to be an allocation under section 63
of credits created for the site or a
biodiversity area on the land that is subject to
the native vegetation management agreement
(the original credits); and
10
15
20
25
(b) the cancellation under section 66(1) of the
corresponding alternate credits of those
original credits is taken to be an allocation of
credits for the purposes of subsection (6).
(9) If any or all native vegetation credits created for a
site or biodiversity area other than the site or
biodiversity class area subject to the native
vegetation management agreement are allocated
for the purposes of subsection (6), the same
proportion of corresponding alternate credits
created for that site or biodiversity class area is
cancelled.
(10) An application under subsection (1) must be
accompanied by the fee, if any, prescribed for the
purposes of this section.
30
(11) The Secretary may require the owner of land to
provide any further information, including
information prepared by a qualified assessor, that
the Secretary considers necessary to determine an
application under subsection (1).
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Part 5—Native Vegetation Management Agreements with Owners of Private
Land
41 Variation of agreements relating to land for which
credits are not created
5
If a native vegetation management agreement
relates to land for which native vegetation credits
are not created, the agreement may be varied on
application by the owner of that land with the
consent of the Secretary.
42 Recording of variation on Land Register
10
15
20
(1) Subject to subsection (2), if a native vegetation
management agreement that is recorded on the
Land Register is varied, the Secretary must apply
to the Registrar of Titles to record a consolidated
copy of the agreement that incorporates the
variation on any folio of the Land Register for
land that is subject to the agreement.
(2) Subsection (1) does not apply unless the owner of
the land that is subject to the native vegetation
management agreement pays the Secretary any fee
payable by the Secretary for the recording of the
consolidated copy of the agreement in the Land
Register.
Note
Fees to the Registrar of Titles are payable under the
Transfer of Land Act 1958.
25
(3) An application under this section must—
(a) be in a form approved by the Registrar of
Titles under the Transfer of Land Act
1958; and
(b) be accompanied by a consolidated copy of
the agreement that incorporates the variation.
30
(4) The Registrar of Titles may record the
consolidated agreement in the Land Register if the
application complies with subsection (3).
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s. 41
Native Vegetation Credit Market Bill 2014
s. 43
Part 5—Native Vegetation Management Agreements with Owners of Private
Land
43 Cancellation of native vegetation management
agreements
5
(1) Subject to this section, on the application of the
owner of land that is subject to a native vegetation
management agreement, the Secretary may cancel
that agreement.
(2) An application under subsection (1) must be
accompanied by the fee, if any, prescribed for the
purposes of this section.
10
(3) The Secretary must not cancel a native vegetation
management agreement relating to land for which
native vegetation credits have been created
unless—
(a) any credits created for that land that are not
allocated and have not been transferred to a
person other than the owner of the land are
cancelled; and
15
(b) if any credits created for that land have been
transferred to a person other than the owner
of the land or are allocated, the Secretary is
satisfied that the owner of the land provides
for an equivalent reduction in credits by one
or a combination of the following methods—
20
(i) allocating credits for the purposes of
this subsection;
25
(ii) cancelling credits created for land other
than the land to which the agreement
relates.
30
35
(4) For the purposes of subsection (3), if native
vegetation credits created for the land that is
subject to the native vegetation management
agreement have been allocated or transferred after
the agreement came into effect and all or part of
an equivalent reduction is to be provided for by
the allocation, cancellation or both of native
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Part 5—Native Vegetation Management Agreements with Owners of Private
Land
vegetation credits, the following credits must be
allocated or cancelled—
(a) if general biodiversity credits created for the
land that is subject to the agreement have
been allocated or transferred, the same
number of general biodiversity credits;
5
(b) if specific biodiversity credits created in
relation to a relevant species for that land
have been allocated or transferred, the same
number of specific biodiversity credits
created in relation to the same relevant
species.
10
15
(5) If any or all native vegetation credits created for a
site or biodiversity class area are allocated for the
purposes of subsection (4), the same proportion of
corresponding alternate credits created for that site
or biodiversity class area is cancelled.
20
(6) If any or all native vegetation credits created for a
site or biodiversity class area are cancelled for the
purposes of subsection (4), the same proportion of
corresponding alternate credits created for that site
or biodiversity class area is cancelled.
(7) The Secretary must not cancel a native vegetation
management agreement—
25
(a) relating to land for which native vegetation
credits are not created; and
(b) that provides for a requirement to offset the
removal, lopping or destruction of native
vegetation—
30
unless the Secretary is satisfied that the owner of
the land has undertaken to provide other
protections or improvements to native vegetation
equivalent to the requirements described in
paragraph (b).
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Native Vegetation Credit Market Bill 2014
s. 44
Part 5—Native Vegetation Management Agreements with Owners of Private
Land
(8) If a native vegetation management agreement is
cancelled under this section, the cancellation takes
effect—
(a) when the Secretary notifies the owner of the
land that is subject to the agreement in
writing of the cancellation; or
5
(b) on a date agreed by the Secretary and the
owner.
44 Recording of cancellation on Land Register
10
15
20
(1) Subject to subsection (2), if a native vegetation
management agreement that is recorded on the
Land Register is cancelled under section 43, the
Secretary must apply to the Registrar of Titles to
remove the record of the agreement from any folio
of the Land Register for land that is subject to the
agreement.
(2) Subsection (1) does not apply unless the owner of
the land that is subject to the native vegetation
management agreement pays the Secretary any fee
payable by the Secretary for the removal of the
record of the agreement from the Land Register.
Note
Fees to the Registrar of Titles are payable under the
Transfer of Land Act 1958.
25
30
(3) An application under this section must be in a
form approved by the Registrar of Titles under the
Transfer of Land Act 1958.
(4) The Registrar of Titles may remove the record of
a native vegetation management agreement from
the Land Register if an application complies with
subsection (3).
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Part 5—Native Vegetation Management Agreements with Owners of Private
Land
45 Recording of cancellation or allocation of credits on
Native Vegetation Credit Register
5
10
15
(1) If native vegetation credits are cancelled or
allocated for the purposes of section 40 or 43, the
owner of the land must lodge with the Registrar of
Native Vegetation Credits a notification for the
recording of the cancellation or allocation.
(2) On the lodgement of a notification under
subsection (1), the Registrar of Native Vegetation
Credits must record the cancellation or allocation
in the Native Vegetation Credit Register.
(3) The cancellation or allocation of a native
vegetation credit under section 40 or 43 takes
effect when it is recorded in the Native Vegetation
Credit Register.
__________________
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s. 45
Native Vegetation Credit Market Bill 2014
Part 6—Native Vegetation Credit Register
s. 46
PART 6—NATIVE VEGETATION CREDIT REGISTER
Division 1—Native Vegetation Credit Register
46 Register to be kept
5
The Minister must keep a Register of native
vegetation credits created under this Act.
Division 2—Registrar and staff
47 Employment of Registrar and staff
10
15
(1) A Registrar of Native Vegetation Credits must be
employed under Part 3 of the Public
Administration Act 2004 for the purposes of this
Act.
(2) Any other employees that the Registrar considers
necessary for the purposes of this Part may be
employed under Part 3 of the Public
Administration Act 2004.
48 Functions of Registrar of Native Vegetation Credits
The functions of the Registrar of Native
Vegetation Credits are—
(a) to maintain the Native Vegetation Credit
Register; and
20
(b) to provide information from the records and
information in the Register relating to native
vegetation credits in accordance with this
Part; and
25
(c) to keep records of prior transactions in
relation to native vegetation credits; and
(d) to approve forms for the purposes of this
Act.
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Part 6—Native Vegetation Credit Register
49 Delegation of functions
5
The Registrar of Native Vegetation Credits, by
instrument, may delegate any of the Registrar's
powers, duties or functions, other than this power
of delegation, to an employee referred to in
section 47(2).
Division 3—Records
50 Native vegetation credit records
10
15
(1) Subject to subsection (3), if the Registrar of
Native Vegetation Credits is notified under
section 14, 19 or 26 that a native vegetation credit
has been created, the Registrar must ensure that a
record for the credit is made in the Native
Vegetation Credit Register.
(2) A record for a native vegetation credit must
contain the following information—
(a) the name and address of the holder of the
credit;
(b) a description of the site in relation to which
the credit was created;
20
(c) the day on which the record was made in the
Native Vegetation Credit Register;
(d) if the credit is created under Part 2, a copy of
the native vegetation management agreement
relating to the land for which the credit was
created;
25
(e) if the credit was created under Part 3, a copy
of any vegetation improvement plan relating
to the land for which the credit was created;
30
(f) the number of credits created for the land for
which the credit was created;
(g) the nature and attributes of the credit;
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Native Vegetation Credit Market Bill 2014
Part 6—Native Vegetation Credit Register
s. 51
(h) the details of any transfer of the credit,
including the date of the transfer and any
consideration provided for the transfer;
(i) if the credit has been allocated under
section 63—
5
(i) a description of the purpose or offset
condition for which the credit was
allocated; and
(ii) if the allocation is reversed under
section 67 or 68;
10
(j) if the credit was created under Part 2, the
potential gain used to determine the
application for the credit;
(k) if the credit was created under Part 3, the
potential gain contained in the application or
Ministerial determination for the credit;
15
(l) any suspension of the credit;
(m) any cancellation of the credit;
(n) any details prescribed for the purposes of this
subsection.
20
(3) The Registrar may keep a single record for 2 or
more native vegetation credits if the information
specified in subsection (2) is the same for those
credits.
25
30
51 Recording of legal personal representative
(1) The legal personal representative of a deceased
person may lodge with the Registrar of Native
Vegetation Credits a request to record in the
Native Vegetation Credit Register the transfer to
the legal personal representative of a native
vegetation credit held in the name of the deceased
person.
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(2) A request under subsection (1) must—
(a) be in the form approved by the Registrar of
Native Vegetation Credits; and
(b) be accompanied by the prescribed fee, if any.
5
(3) If the Registrar is satisfied that the person lodging
the request is the legal personal representative of
the deceased person, the Registrar may record—
(a) the appointment of that legal personal
representative; and
10
(b) the date of that appointment.
(4) On the making of a record under this section—
(a) the legal personal representative becomes the
holder of the native vegetation credit; and
(b) the status of the legal personal representative
as holder of the credit is taken to have arisen
on the date of the appointment described in
subsection (3)(b).
15
52 Recording of survivor of joint holding
20
25
(1) Subject to this Act, on the death of a person
recorded in the Native Vegetation Credit Register
with any other person as a joint holder of a native
vegetation credit, the survivor may lodge a request
with the Registrar of Native Vegetation Credits
for a recording to be made in the Register of the
transfer to the survivor of the deceased person's
holding.
(2) A request lodged under subsection (1) must—
(a) be in the form approved by the Registrar of
Native Vegetation Credits; and
30
(b) be accompanied by the prescribed fee, if any.
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(3) The Registrar may record the transfer by
survivorship of a native vegetation credit on being
satisfied as to proof of the death of the joint
holder.
5
10
53 Recording of trustee in bankruptcy
(1) The trustee in bankruptcy of a holder of a native
vegetation credit may lodge with the Registrar of
Native Vegetation Credits a request for a
recording of the transfer to the trustee in
bankruptcy to be made in the Native Vegetation
Credit Register in respect of that credit.
(2) A request lodged under subsection (1) must—
(a) be in the form approved by the Registrar of
Native Vegetation Credits; and
15
(b) be accompanied by the prescribed fee, if any.
(3) If the Registrar is satisfied as to the trustee in
bankruptcy's authority to be recorded under this
section, the Registrar may record the appointment
of that trustee in bankruptcy.
20
25
30
(4) On the making of a recording under this section,
the trustee in bankruptcy becomes the holder of
the native vegetation credit in respect of the
interest of the holder of the credit.
(5) Unless, prior to a bankrupt holder of a native
vegetation credit dealing with the credit, the
trustee in bankruptcy has applied to be recorded
under this section, any dealing by the bankrupt
holder with a person dealing in good faith and for
value with that holder is not to be affected by any
order of sequestration.
(6) This section is subject to any law of the
Commonwealth relating to bankruptcy.
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Division 4—Access to information in the Native Vegetation
Credit Register
54 Disclosure of information to the Secretary
5
10
15
The Registrar of Native Vegetation Credits must
ensure that all records and information in the
Native Vegetation Credit Register that are
necessary to enable the Secretary to carry out the
Secretary's functions under this Act are disclosed
to the Secretary for that purpose.
55 Information available from the Native Vegetation
Credit Register
The following information contained in the record
kept in the Native Vegetation Credit Register for a
native vegetation credit is publicly available under
this Division—
(a) the name and address of the holder of the
credit;
(b) the nature and attributes of the credit;
(c) the details of any transfer of the credit,
including the date of the transfer and any
consideration provided for the transfer;
20
(d) if the credit has been allocated under
section 63—
(i) a description of the purpose or offset
condition for which the credit was
allocated; and
25
(ii) if the allocation is reversed under
section 67 or 68;
(e) any suspension of the credit, if that
suspension has not ended or been lifted;
30
(f) any cancellation of the credit, if that
cancellation has not been reversed;
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(g) any information recorded under
section 50(2)(n) that is prescribed as publicly
available for the purposes of this section.
5
56 Suppression of certain personal records and
information
10
(1) A person whose personal information is held in
the Native Vegetation Credit Register may apply
to the Registrar of Native Vegetation Credits to
restrict public access to some or all of that
personal information.
15
(2) If the Registrar is satisfied that exceptional
circumstances exist justifying the restriction of
public access to that person's personal
information, the Registrar may restrict public
access to some or all of that personal information.
(3) The restriction of public access under
subsection (2) may be for the period and on the
conditions that the Registrar thinks fit.
20
(4) If the Registrar is satisfied that it is in the public
interest that personal information restricted under
this section be released to a person who applies
for it, the Registrar may release some or all of the
information to the person on any condition that
the Registrar thinks fit.
25
(5) If the Registrar decides to release restricted
personal information under subsection (4), the
Registrar must give written notice of the decision
to the person whose restricted personal
information is to be released.
30
(6) The Registrar must not release restricted personal
information under this section until 28 days after
giving written notice of the decision to release the
information to the person whose restricted
personal information is to be released.
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57 Right of review
5
(1) A person whose interests are affected by a
decision of the Registrar of Native Vegetation
Credits under section 56 may apply to VCAT for
review of the decision.
(2) An application for review under subsection (1)
must be lodged with VCAT within 28 days
after—
(a) notice of the decision was given to the
person; or
10
(b) if, under section 45 of the Victorian Civil
and Administrative Tribunal Act 1998, the
person requests a statement of reasons for the
decision, the day on which the statement of
reasons is given to the person or the person is
informed under section 46(5) of that Act that
a statement of reasons will not be given.
15
58 Searching the Native Vegetation Credit Register
20
(1) A person may apply to the Registrar of Native
Vegetation Credits for publicly available
information.
(2) An application under this section must be—
(a) in the form approved by the Registrar of
Native Vegetation Credits; and
25
30
(b) accompanied by the prescribed fee, if any.
(3) On receiving an application under this section, the
Registrar may search the Native Vegetation Credit
Register and provide the information to the
applicant in any manner the Registrar considers
appropriate.
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(4) The Registrar may provide publicly available
information under this section in relation to—
(a) current information in the Register; or
(b) non-current information in the Register; or
5
(c) a combination of the matters referred to in
paragraphs (a) and (b).
(5) In this section—
10
publicly available information means information
contained in a record kept for a native
vegetation credit—
(a) that is publicly available under
section 55; and
(b) to which the Registrar of Native
Vegetation Credits has not restricted
public access under section 56.
15
Division 5—Correction and amendment of the Native
Vegetation Credit Register
59 Correction and amendment of the Native Vegetation
Credit Register
20
(1) If satisfied that it is necessary to do so to reflect
the current status of a record or information in the
Native Vegetation Credit Register, the Registrar
of Native Vegetation Credits may correct or
amend the Register—
25
(a) to correct any error in a record; or
(b) to amend any record; or
(c) to delete or cancel any record.
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(2) The Registrar must correct or amend the Register
if required to do so—
(a) by a court or tribunal; or
(b) by virtue of this Act or any other Act.
5
(3) The Registrar may correct or amend the Register
by—
(a) adding, cancelling or deleting a record; or
(b) adding, altering or deleting particulars or
details contained in a record; or
10
(c) recording details of any change in the name
or address of the holder of a native
vegetation credit in respect of which a record
is kept.
(4) The Registrar may—
15
(a) correct the error on the Registrar's own
initiative if the Registrar is satisfied that
there is an error in the Register; or
(b) correct or amend the Register on the
application of a person in the form approved
by the Registrar accompanied by the
prescribed fee, if any.
20
60 Notification of interested persons
25
If the Registrar of Native Vegetation Credits
corrects a part of the Native Vegetation Credit
Register under section 59(4)(a) in relation to a
substantial error in a record for a native vegetation
credit, the Registrar must notify each person who
is recorded in the Register as a holder of that
credit.
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Division 6—General
61 Registrar of Native Vegetation Credits may require
proof of identity
5
10
15
20
(1) The Registrar of Native Vegetation Credits may
require a person who requests the recording of any
matter in the Native Vegetation Credit Register or
the approval of any matter for recording in the
Register to provide any evidence that the Registrar
considers sufficient to establish that person's
identity.
(2) The Registrar is not required to make a recording
in the Register or approve any matter for
recording in the Register if the Registrar is not
satisfied as to the identity of any person by or on
behalf of whom any document relating to that
matter was executed.
(3) The Registrar may require or permit the identity
of a person to be verified by a person or class of
persons approved as a verifier for the purposes of
this section.
(4) The Registrar, by notice published in the
Government Gazette, may approve—
(a) a person or class of persons as a verifier or
verifiers for the purposes of this section; or
25
(b) standards of evidence of identity that the
Registrar considers sufficient for the
purposes of this section.
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Part 7—Allocation of Native Vegetation Credits
PART 7—ALLOCATION OF NATIVE VEGETATION
CREDITS
62 Definition
In this Part—
5
planning decision maker means—
(a) in relation to an offset condition that is
a condition of a planning permit—
(i) if the offset condition is specified
by a responsible authority within
the meaning of the Planning and
Environment Act 1987, that
responsible authority; or
10
(ii) if the offset condition is specified
by a referral authority within the
meaning of the Planning and
Environment Act 1987, that
referral authority or any other
person or body specified in the
permit as a person or body to
whose satisfaction the offset
condition must be met; or
15
20
(b) in relation to an offset condition that is
not a condition of a planning permit,
the person or body specified in the
relevant planning scheme as the person
or body to whose satisfaction the offset
condition must be met.
25
63 Allocation of native vegetation credits
30
Subject to this Part, the holder of native vegetation
credits may allocate the credits for—
(a) an offset condition that must be complied
with by—
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(i) in the case of credits held by a person
other than the Minister, the holder of
the credits; or
(ii) in the case of credits held by the
Minister, the Crown land manager of
the land for which the credits were
created or any Minister or public
authority; or
5
(b) a philanthropic purpose; or
10
(c) a prescribed purpose.
Note
Credits may also be allocated under section 31, 40 or 43.
64 Allocation must be recorded
15
(1) If native vegetation credits are allocated under
section 63, the holder of the credits must lodge
with the Registrar of Native Vegetation Credits a
notification for the recording of the allocation.
(2) A notification under subsection (1) must—
(a) be in the form approved by the Registrar of
Native Vegetation Credits; and
20
(b) be accompanied by the prescribed fee, if any;
and
(c) include a description of the purpose or offset
condition for which the native vegetation
credits are allocated.
25
(3) On the lodgement of a notification under
subsection (1), the Registrar of Native Vegetation
Credits must record the following in the Native
Vegetation Credit Register—
30
(a) the allocation of the native vegetation credits
under section 63;
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(b) the cancellation of corresponding alternate
credits under section 66(1) that results from
the allocation.
5
(4) An allocation of a native vegetation credit takes
effect when the allocation is recorded in the
Native Vegetation Credit Register.
65 Limits on allocation of native vegetation credits
A native vegetation credit cannot be allocated
under section 63 if—
10
(a) unless the allocation is reversed under
section 67 or 68, that credit has previously
been allocated under section 63; or
(b) the credit is a corresponding alternate credit
of that credit and is required to be cancelled
under section 66; or
15
(c) the credit is suspended or cancelled.
66 Cancellation of corresponding alternate credits on
allocation
20
25
(1) If any or all native vegetation credits created for a
site or biodiversity class area are allocated under
section 63, the same proportion of corresponding
alternate credits created for that site or
biodiversity class area is cancelled.
(2) If an allocation of native vegetation credits is
reversed under section 67 or 68, any cancellation
under this section of corresponding alternate
credits is reversed.
67 Application for reversal of allocation of credits
30
(1) If a native vegetation credit is allocated under
section 63, the holder of that credit may apply to
the Secretary for the reversal of the allocation of
that credit if—
(a) the credit was created under Part 2; or
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(b) the credit was created under Part 3 and was
allocated under section 63 by a person other
than the Minister.
Note
5
Section 68 provides for the reversal by the Minister of an
allocation of credits.
(2) An application under subsection (1) must—
(a) be in the form approved by the Secretary;
and
10
(b) be accompanied by the prescribed fee, if any.
(3) The Secretary may accept an application under
subsection (1) for the reversal of an allocation of a
native vegetation credit for an offset condition
if—
15
(a) the Secretary is satisfied that no native
vegetation has been removed, destroyed or
lopped in complying with the requirement of
the planning permit or a planning scheme
that constitutes the offset condition for which
the credit was allocated; and
20
(b) the planning decision maker notifies the
Secretary in writing that the allocation of the
credit is not required for the offset condition.
25
30
(4) The Secretary may accept an application under
subsection (1) for the reversal of an allocation of a
native vegetation credit for a prescribed purpose
in circumstances prescribed for the purposes of
this section.
68 Reversal of allocation by Minister of credits created
for Crown land
If the Minister allocates a native vegetation credit
created under Part 3 under section 63, the Minister
may reverse the allocation of that credit—
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(a) if the credit was allocated for an offset
condition, if—
(i) the Minister is satisfied that no native
vegetation has been removed, destroyed
or lopped in complying with the
requirement of the planning permit or a
planning scheme that constitutes the
offset condition for which the credit
was allocated; and
5
10
(ii) the planning decision maker notifies the
Minister in writing that the allocation of
the credit is not required for the offset
condition; or
(b) if the credit was allocated for a prescribed
purpose, in circumstances prescribed for the
purposes of this section.
15
69 Notification and recording of reversal of allocation
20
25
(1) If an allocation of a native vegetation credit is
reversed under section 67 or 68, the holder of the
credit must lodge with the Registrar of Native
Vegetation Credits a notification for the recording
of that reversal.
(2) On the lodgement of a notification under
subsection (1), the Registrar of Native Vegetation
Credits must record the following in the Native
Vegetation Credit Register—
(a) the reversal of the allocation;
(b) the reversal of any cancellation of
corresponding alternate credits that resulted
from the allocation.
30
(3) The reversal of an allocation of a native
vegetation credit under this section takes effect
when the reversal is recorded in the Native
Vegetation Credit Register.
__________________
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Part 8—Transfer of Native Vegetation Credits
PART 8—TRANSFER OF NATIVE VEGETATION CREDITS
70 Native vegetation credits may be transferred
5
10
(1) Subject to this Part, the holder of native vegetation
credits may in writing transfer the credits to any
person.
(2) If native vegetation credits created for a site or
biodiversity class area are transferred under
subsection (1), the same proportion of
corresponding alternate credits created for that site
or biodiversity class area is transferred to the same
transferee.
71 Consideration for transfer
A transfer of native vegetation credits must—
(a) state whether the transfer is for monetary
consideration; and
15
(b) if the transfer is for monetary consideration,
state the amount of that consideration.
72 Automatic transfer of native vegetation credits on
transfer of land
20
(1) If ownership of land is transferred to any person, a
native vegetation credit created for that land is
transferred to that person if that credit—
(a) is held by the transferor immediately before
the transfer; and
25
(b) has not been allocated under this Act or, if it
has been allocated, that allocation has been
reversed.
Note
30
If private land for which credits have been created is
transferred, the transferee must notify the Secretary: see
section 86.
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(2) A transfer of native vegetation credits under
subsection (1) is not a previous transfer of those
credits for the purposes of section 75(1)(a)
or 76(1)(a) or Part 9.
5
73 Native vegetation credits cannot be transferred if
previously allocated
(1) Subject to subsection (2), a person cannot transfer
a native vegetation credit if that credit has
previously been allocated under this Act.
10
15
(2) A person may transfer a native vegetation credit
that has previously been allocated if that
allocation has been reversed under section 67
or 68.
74 Native vegetation credits cannot be transferred if
suspended or cancelled
A person cannot transfer a native vegetation credit
if that credit is suspended or is cancelled.
75 Secretary must approve certain transfers of credits
20
(1) If native vegetation credits created under Part 2
are transferred, the transferor or the transferee, or
the transferor's or transferee's agent, must apply to
the Secretary for approval of the transfer if—
(a) the credits have not previously been
transferred to any person; and
25
30
(b) the credits are transferred during the 10-year
period beginning on the day on which the
native vegetation management agreement
relating to the land for which the credits
were created comes into effect.
(2) An application under subsection (1) must—
(a) if the transfer is for monetary consideration,
be accompanied by an amount payable to the
Secretary equivalent to the consideration
stated under section 71; and
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(b) be in the form approved by the Secretary;
and
(c) be accompanied by the prescribed fee, if any;
and
5
(d) include the estimate described in
section 9(3)(d); and
(e) include details of the number of the native
vegetation credits being transferred as a
proportion of the total number of credits
created for the site; and
10
(f) include any information prescribed for the
purposes of this section; and
(g) include any further information required by
the Secretary.
15
(3) The Secretary may request that the applicant
provide the Secretary with further information
regarding the consideration or lack of
consideration for a transfer of native vegetation
credits if—
20
(a) the transfer is stated under section 71 to be
for monetary consideration and the stated
consideration is not at least the prescribed
percentage of—
(i) the estimate provided under
section 9(3)(d) in relation to the native
vegetation credits being transferred; or
25
(ii) the proportion described in
subsection (2)(e) of that estimate; or
(b) the transfer is stated under section 71 to not
be for monetary consideration.
30
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5
(4) If, after considering any further information
required under subsection (3), the Secretary
believes on reasonable grounds that the
consideration stated for that transfer is insufficient
to enable the land owner to carry out the
requirements of the site management plan or the
proportion described in subsection (2)(e) of those
requirements, the Secretary may—
(a) reject the application; or
10
(b) request the applicant to vary the
consideration provided for the transfer.
Note
15
A decision under this section to reject an application or to request
the applicant to vary the consideration is a reviewable decision for
the purposes of Division 7 of Part 11.
(5) If the Secretary does not reject an application
under this section, the Secretary must—
(a) approve the transfer and lodge with the
Registrar of Native Vegetation Credits a
notification of the transfer; and
20
(b) pay any monetary consideration that
accompanied the application into the Fund.
25
(6) If the Secretary requests the applicant to vary the
consideration provided for the transfer, the
applicant may—
(a) amend the application and resubmit it,
accompanied by the varied amount of
consideration; or
(b) withdraw the application.
30
(7) If the Secretary rejects an application under this
section or the application is withdrawn, the
Secretary must return to the applicant any amount
that accompanied the application under
subsection (2)(a).
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Part 8—Transfer of Native Vegetation Credits
76 Transfer of certain credits held by the Minister
5
(1) Subject to subsection (2), the Minister may
transfer native vegetation credits held by the
Minister that are created under Part 3 for land that
is subject to a vegetation improvement plan if—
(a) the credits have not previously been
transferred to any person; and
(b) the credits are transferred during the 10-year
period beginning on the day that the
vegetation improvement plan comes into
effect.
10
(2) The Minister may make a transfer under
subsection (1) if—
(a) in the case of a transfer that is stated under
section 71 to be for monetary consideration,
the consideration is—
15
(i) at least the prescribed percentage of the
same proportion of the estimate
provided under section 17(3)(c)(ii),
18(3)(d) or 20(3)(e)(ii) as the
proportion of the number of the native
vegetation credits being transferred
relative to the number of the total
number of credits created for the site;
or
20
25
(ii) less than the amount described in
subparagraph (i) if the Minister is
satisfied that the consideration is
sufficient to enable the Crown land
manager to carry out the requirements
specified in the vegetation
improvement plan or that the Crown
land manager is otherwise able to carry
out those requirements; or
30
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(b) in the case of a transfer that is stated under
section 71 to not be for monetary
consideration, the Minister is satisfied that
the Crown land manager is able to carry out
the requirements of the vegetation
improvement plan.
5
(3) If the Minister transfers native vegetation credits
under this section, the Minister must—
(a) lodge with the Registrar of Native
Vegetation Credits a notification of the
transfer; and
10
(b) pay any monetary consideration for the
transfer into the Fund.
15
20
77 Application to Registrar of Native Vegetation
Credits for recording of transfer of credits
(1) Subject to subsection (2), if a native vegetation
credit is transferred, the transferor or the
transferee, or the transferor's or transferee's agent,
must apply to the Registrar of Native Vegetation
Credits for the transfer to be recorded in the
Native Vegetation Credit Register.
(2) An application under subsection (1) for the
recording of the transfer must not be lodged if—
(a) the Secretary must approve the transfer
under section 75; or
25
(b) the transfer is made under section 76.
30
(3) An application under subsection (1) must be in the
form approved by the Registrar of Native
Vegetation Credits and accompanied by the
prescribed fee, if any.
(4) The Registrar of Native Vegetation Credits must
accept an application made in accordance with
this section.
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78 Recording of transfer of native vegetation credits
(1) The Registrar of Native Vegetation Credits must
record a transfer of native vegetation credits in the
Native Vegetation Credit Register—
5
(a) on the lodgement of notification by the
Secretary under section 75(5)(a); or
(b) on the lodgement of notification by the
Minister under section 76(3)(a); or
(c) on accepting an application under section 77.
10
(2) A transfer of a native vegetation credit takes effect
when the transfer is recorded in the Native
Vegetation Credit Register.
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Part 9—Suspension and Cancellation of Native Vegetation Credits
PART 9—SUSPENSION AND CANCELLATION OF NATIVE
VEGETATION CREDITS
Division 1—Suspension of native vegetation credits
5
10
79 Suspension on grounds of false or misleading
information
(1) Subject to subsection (2), the Secretary may
suspend native vegetation credits held by a person
other than the Minster if the Secretary suspects on
reasonable grounds that any information provided
in an application under section 9 or 20 relied on in
the creation of the credits was false or misleading.
(2) The Secretary cannot suspend native vegetation
credits under this section if—
(a) the credits have been transferred to a person
other than the owner of land for which the
credits were created; or
15
(b) the credits have been allocated under
section 63 and that allocation has not been
reversed.
20
(3) If the Secretary suspends native vegetation credits
under this section, the Secretary must notify the
holder of the credits of the suspension in writing,
stating the grounds on which the native vegetation
credits are suspended.
25
(4) If the Secretary suspends native vegetation credits
under this section, the Secretary must investigate
the suspicions that led to the suspension.
30
(5) Not more than 28 days after suspending native
vegetation credits under this section, the Secretary
must—
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(a) propose to cancel the credits under
section 81; or
(b) lift the suspension of the credits.
5
(6) If the Secretary proposes to cancel native
vegetation credits, the Secretary must notify the
holder of the credits of the proposed cancellation
in writing.
(7) A notice under subsection (6) must state—
(a) the grounds on which the native vegetation
credits are proposed to be cancelled; and
10
(b) that the holder of the credits may make
submissions on the cancellation to the
Secretary within 28 days after the notice.
80 Recording of suspension and lifting of suspension
15
(1) The Secretary must lodge with the Registrar of
Native Vegetation Credits a notification for the
recording of—
(a) the suspension of native vegetation credits
under section 79; and
20
25
30
(b) the lifting of the suspension under section 79
or 81.
(2) On the lodgement of a notification under
subsection (1), the Registrar of Native Vegetation
Credits must record the suspension or the lifting
of the suspension in the Native Vegetation Credit
Register.
(3) A suspension or a lifting of the suspension of a
native vegetation credit takes effect when the
suspension or the lifting of the suspension is
recorded in the Native Vegetation Credit Register.
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Division 2—Cancellation of native vegetation credits
81 Cancellation on basis of false or misleading
information
5
(1) Subject to this Division, the Secretary may cancel
native vegetation credits if—
(a) the credits are suspended under section 79;
and
(b) the 28-day period referred to in section 79(7)
has expired; and
10
15
(c) the Secretary has considered any
submissions received within that period.
(2) If the Secretary does not cancel native vegetation
credits that are suspended under section 79 within
28 days after the period stated in the notice given
under section 79(6) has expired, the Secretary
must lift the suspension of those credits.
(3) If the Secretary cancels native vegetation credits
under this section, the Secretary must notify the
holder of the credits of the cancellation in writing.
20
Note
A decision to cancel native vegetation credits under this section is
a reviewable decision for the purposes of Division 7 of Part 11.
82 Cancellation for non-compliance with native
vegetation management agreement
25
(1) Subject to this Division, the Secretary may cancel
native vegetation credits if—
(a) the credits are suspended under section 111;
and
(b) the owner of the land for which the credits
were created does not comply with any
direction given to the owner under
section 110—
30
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(i) within the period specified in the notice
given under section 110(1); or
(ii) if the period described in
subparagraph (i) is extended under
section 110(3), within the extended
period.
5
(2) If the Secretary cancels native vegetation credits
under this section, the Secretary must notify the
holder of the credits of the cancellation in writing.
10
Note
A decision to cancel native vegetation credits under this section is
a reviewable decision for the purposes of Division 7 of Part 11.
83 Recording of cancellation
15
20
(1) If the Secretary cancels a native vegetation credit
under this Division, the Secretary must lodge with
the Registrar of Native Vegetation Credits a
notification for the recording of that cancellation.
(2) On the lodgement of a notification under
subsection (1), the Registrar of Native Vegetation
Credits must record the cancellation in the Native
Vegetation Credit Register.
(3) A cancellation of a native vegetation credit under
this Division takes effect when the cancellation is
recorded in the Native Vegetation Credit Register.
25
Note
Native vegetation credits may also be cancelled under section 31,
40 or 43.
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PART 10—NATIVE VEGETATION CREDIT FUND
Division 1—Native Vegetation Credit Fund
84 Native Vegetation Credit Fund established in Trust
Fund
5
There is established in the Public Account as part
of the Trust Fund an account to be known as the
Native Vegetation Credit Fund.
85 Money paid into the Fund
The Fund consists of—
10
(a) any amounts paid into the Fund under
sections 75(5)(b) and 76(3)(b); and
(b) any money derived from any investment of
the Native Vegetation Credit Fund.
Division 2—Notification of transfer of land
15
86 Owner of land to notify Secretary if land
transferred
(1) If the ownership of private land for which native
vegetation credits have been created is transferred
to any person, that person must—
20
(a) notify the Secretary of the transfer; and
(b) notify the Registrar of Native Vegetation
Credits if ownership of any native vegetation
credit created for that land is transferred
under section 72(1) with the land.
25
(2) Notification under subsection (1) must—
(a) be in the form approved by the Secretary;
and
(b) be accompanied by any information required
by the Secretary.
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5
10
(3) If the ownership of private land for which native
vegetation credits have been created is transferred
to a person and that person does not notify the
Secretary under subsection (1), an obligation to
make a payment from the Fund to that person
imposed on the Secretary by Division 3 is met if
the Secretary makes the payment to the transferor
of the land.
(4) Subsection (3) applies until the person notifies the
Secretary of the transfer under subsection (1) or
submits an annual report relating to the land under
section 94, whichever is earlier.
Division 3—Payments from the Fund
87 Payments from the Fund
15
Subject to this Division, money may be paid out
of the Fund from time to time to an owner of land
or a Crown land manager if—
(a) the owner or Crown land manager has
submitted any annual report required under
Division 2 of Part 11; and
20
(b) requirements relating to the land have been
met; and
(c) those requirements are specified in a native
vegetation management agreement or
vegetation improvement plan relating to the
land.
25
88 Initial payment to owner of private land
30
If the Secretary approves under Part 8 an
application for the transfer of native vegetation
credits created for private land, the Secretary must
make a payment calculated in the prescribed
manner to the owner of that land if—
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(a) a payment has not previously been made
under this section or section 89 in relation to
a transfer of any credits created for that land;
and
5
(b) the Secretary is satisfied that at the time of
the transfer the owner had submitted any
annual report that the owner was required to
submit under section 94(1) in relation to that
land; and
10
(c) any annual report submitted by the owner in
relation to the land has been accepted by the
Secretary under section 94(5) or (6).
89 Payments to owner of private land for meeting
requirements
15
(1) Subject to subsection (2), the Secretary must make
a payment calculated in the prescribed manner to
an owner of private land who has submitted an
annual report under section 94(1) if—
(a) monetary consideration for the transfer of
native vegetation credits created for that land
has been provided and the Secretary has paid
that consideration into the Fund under
section 75(5)(b); and
20
(b) the Secretary is satisfied that the owner has
submitted under section 94(1) any annual
report that the owner is required to submit in
relation to the land; and
25
(c) any annual report submitted by the owner in
relation to the land has been accepted by the
Secretary under section 94(5) or (6); and
30
(d) subject to paragraph (e), the Secretary is
satisfied that the owner has met the
requirements of the native vegetation
management agreement relating to the land
that must be met at the time of the payment;
and
35
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(e) if the owner has failed to meet a requirement
of the agreement, that failure is disclosed in
the annual report most recently submitted by
the owner under section 94(1) and that report
has been accepted under section 94(6).
5
10
15
20
(2) The Secretary must not make a payment under
this section to an owner of private land for
meeting a requirement if a requirement specified
in the native vegetation management agreement
for that land that must be met during the 10-year
period beginning on the day the native vegetation
management agreement for the land comes into
effect has not been met within 12 months after the
expiry of that period.
90 Initial payment to Crown land manager
If the Minister transfers under section 76 native
vegetation credits created for Crown land, the
Secretary must make a payment calculated in the
prescribed manner to the Crown land manager of
that land if—
(a) a payment has not previously been made
under this section or section 91 in relation to
a transfer of any credits created for the land;
and
25
(b) the Secretary is satisfied that at the time of
the transfer the relevant Crown land manager
had submitted any annual report required to
be submitted under section 95(1) in relation
to that land; and
30
(c) any annual report submitted by the Crown
land manager in relation to the land has been
accepted under section 95(4) or (5).
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91 Payments to Crown land manager for meeting
requirements
5
(1) Subject to subsection (2), the Secretary must make
a payment calculated in the prescribed manner to
a Crown land manager for Crown land who has
submitted an annual report under section 95(1)
if—
10
(a) the Minister has paid into the Fund under
section 76(3)(b) monetary consideration
provided for a transfer of any native
vegetation credits created for the Crown
land; and
15
(b) the Secretary is satisfied that the Crown land
manager has submitted any annual report
that the Crown land manager is required to
submit in relation to the Crown land under
section 95(1); and
(c) any annual report submitted by the Crown
land manager in relation to the Crown land
has been accepted by the Secretary under
section 95(4) or (5); and
20
(d) subject to paragraph (e), the Secretary is
satisfied that the Crown land manager has
met the requirements of the vegetation
improvement plan to which the Crown land
is subject that must be met at the time of the
payment; and
25
(e) if the Crown land manager has failed to meet
a requirement of the plan, the Crown land
manager's failure to meet that requirement is
disclosed in the annual report most recently
submitted by the Crown land manager under
section 95(1) and that report has been
accepted by the Secretary under
section 95(5).
30
35
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5
(2) The Secretary must not make a payment under
this section to a Crown land manager if a
requirement specified in the vegetation
improvement plan for that land that must be met
before the plan ceases to have effect has not been
met within 12 months after the plan ceases to have
effect.
92 Unpaid consideration
10
(1) The Secretary may make a payment of any unpaid
consideration relating to a native vegetation
management agreement for one or more of the
following—
(a) the carrying out under section 112 of an
action to ensure compliance with the native
vegetation management agreement;
15
(b) a biodiversity conservation purpose
approved by the Minister.
20
(2) The Secretary may make a payment of any unpaid
consideration relating to a vegetation
improvement plan for a biodiversity conservation
purpose approved by the Minister.
(3) In this section—
25
unpaid consideration, relating to a native
vegetation management agreement or a
vegetation improvement plan, means money
in the Fund that—
30
(a) was paid into the Fund as consideration
for the transfer of native vegetation
credits created for the land that is
subject to that agreement or plan; and
35
(b) has not been paid out under section 88,
89, 90 or 91 to the owner or Crown
land manager of the land that is subject
to the agreement or plan within
12 months after—
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(i) in the case of a native vegetation
management agreement, the
expiry of the 10-year period
beginning on the day on which the
agreement came into effect; or
5
(ii) in the case of a vegetation
improvement plan, the day the
plan ceases to have effect.
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Part 11—Reporting, Enforcement and Compliance
PART 11—REPORTING, ENFORCEMENT AND
COMPLIANCE
Division 1—Preliminary
93 Definitions
5
10
In this Part—
commencement day, in relation to a native
vegetation management agreement or
vegetation improvement plan, means the day
on which the agreement or plan came into
effect;
identification, in relation to an authorised officer,
means a document in a form approved by the
Secretary that—
(a) sets out the name of the authorised
officer; and
15
(b) contains a photograph of the authorised
officer; and
(c) indicates the fact that the person named
in the document is authorised for the
purposes of this Act.
20
Division 2—Reporting obligations
94 Owner of land to provide annual report to Secretary
25
(1) If a native vegetation management agreement
relates to land for which native vegetation credits
are created, a person who owns the land must,
each year for 10 years after the commencement
day, submit an annual report to the Secretary in
accordance with this section.
Penalty: 5 penalty units.
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(2) An annual report submitted under subsection (1)
must contain—
(a) details of any requirements specified in the
native vegetation management agreement
that must be met during the relevant year;
and
5
(b) a statement as to whether the requirements
described in paragraph (a) were met during
the relevant year and, if so, how those
requirements were met; and
10
(c) photographs that show the work carried out
in order to meet those requirements.
(3) An annual report submitted under subsection (1)
must—
15
(a) be in the form approved by the Secretary;
and
(b) be submitted within 60 days after each
anniversary of the commencement day.
20
(4) A person must not give false or misleading
information in an annual report submitted under
subsection (1).
Penalty: 60 penalty units.
25
30
(5) Subject to subsection (6), within 60 days after
receiving an annual report under subsection (1)
that complies with this section, the Secretary must
accept the annual report unless the Secretary is
satisfied that the owner of land has not met any
requirement of the native vegetation management
agreement.
(6) The Secretary may accept an annual report
submitted under subsection (1) if the Secretary is
satisfied that a failure of the owner of land to meet
the requirements of the native vegetation
management agreement was—
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(a) disclosed in the annual report; and
(b) due to extraordinary circumstances occurring
in the relevant year that were beyond the
control of the owner.
5
10
15
(7) If the Secretary does not accept an annual report
under subsection (5) or (6), the Secretary must
notify the owner of the land that the Secretary has
rejected the annual report.
95 Crown land manager to provide annual report to
Secretary
(1) The Crown land manager for Crown land that is
subject to a vegetation improvement plan must,
each year for 10 years after the commencement
day, submit an annual report to the Secretary
within 60 days of the anniversary of the
commencement day.
(2) An annual report submitted under subsection (1)
must include—
(a) details of any requirements specified in the
vegetation improvement plan that must be
met during the relevant year; and
20
(b) a statement as to whether the requirements
described in paragraph (a) were met during
the relevant year and, if so, how those
requirements were met.
25
(3) An annual report submitted under subsection (1)
must be in the form approved by the Secretary.
30
(4) Subject to subsection (5), within 60 days after
receiving an annual report under subsection (1)
that complies with this section, the Secretary must
accept the annual report unless the Secretary is
satisfied that the Crown land manager has not met
any requirement of the vegetation improvement
plan.
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5
(5) The Secretary may accept an annual report
submitted under subsection (1) if the Secretary is
satisfied that a failure of the Crown land manager
to meet the requirements of the vegetation
improvement plan was—
(a) disclosed in the annual report; and
(b) due to extraordinary circumstances occurring
in the relevant year that were beyond the
control of the Crown land manager.
10
15
20
25
30
(6) If the Secretary does not accept an annual report
under subsection (4) or (5), the Secretary must
notify the Crown land manager and the relevant
Crown land Minister that the Secretary has
rejected the annual report.
96 Crown land Ministers to provide annual report
(1) The Minister administering the Crown Land
(Reserves) Act 1978 must, within 3 months after
the end of each financial year, prepare an annual
report for land managed under that Act during that
financial year for which native vegetation credits
have been created.
(2) The Minister administering the National Parks
Act 1975 must, within 3 months after the end of
each financial year, prepare an annual report for
land managed under that Act during that financial
year for which native vegetation credits have been
created.
(3) The Minister administering the Wildlife Act 1975
must, within 3 months after the end of each
financial year, prepare an annual report for land
managed under that Act during that financial year
for which native vegetation credits have been
created.
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(4) An annual report prepared under this section must
contain—
(a) in relation to land managed under the Act
that is subject to a vegetation improvement
plan, an assessment of the implementation of
the plan; and
5
(b) in relation to land managed under the Act for
which native vegetation credits were created,
details of any change during the financial
year to the purpose for which land managed
under the Act is reserved; and
10
(c) if the purpose for which land is reserved
changes during the financial year and the
Minister considers that change may reduce
the protection of the native vegetation on the
land, details of any steps proposed by the
Minister to address that reduction.
15
20
(5) An annual report prepared under this section must
be included in the Department of Environment
and Primary Industries' annual report of
operations for the financial year under Part 7 of
the Financial Management Act 1994.
97 Periodic reports for private land
25
(1) The Secretary may, from time to time, request an
owner of private land to provide a report relating
to a specified period if—
(a) the land is subject to a native vegetation
management agreement relating to land for
which native vegetation credits have been
created; and
30
(b) no part of the specified period falls within a
year for which an annual report was required
under section 94; and
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(c) the Secretary has not requested a report from
the owner under this section twice or more in
the 10 years before the request.
5
(2) Within 60 days after receiving a request under
subsection (1), the owner must provide the
Secretary with the report in accordance with this
section.
Penalty: 5 penalty units.
10
(3) A report provided under subsection (2) must
contain—
(a) details of any requirements specified in the
native vegetation management agreement
that must be met during the specified period;
and
15
(b) whether the requirements described in
paragraph (a) were met during the specified
period and, if so, how those requirements
were met; and
(c) photographs that show the work carried out
in order to meet those requirements.
20
(4) A person must not give false or misleading
information in a report provided under
subsection (2).
Penalty: 60 penalty units.
25
Division 3—Monitoring and investigation powers
98 Power to enter land with consent
30
(1) Subject to this section, an authorised officer may,
at a reasonable time, enter private land with the
consent of the occupier for one or more of the
following purposes—
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(a) determining whether the owner of the land
has complied with a native vegetation
management agreement to which the land is
subject;
5
(b) verifying information contained in an
application under section 9 or 20 for the
creation of native vegetation credits for the
land;
(c) verifying information contained in a report
submitted under Division 2 in relation to the
land;
10
(d) determining whether an offence against this
Act has been or is being committed.
15
(2) Before asking for consent to enter land under this
section, the authorised officer must give a
reasonable explanation to the occupier about the
following—
(a) the purpose of the entry;
(b) any powers intended to be exercised to
achieve the purpose of the entry;
20
(c) that the occupier is not required to consent to
the exercise of all or any of those powers;
(d) that consent may be given subject to
conditions and may be withdrawn at any
time;
25
(e) if the authorised officer enters land for the
purpose described in subsection (1)(d), that
any photograph, video recording,
measurement, information or sample taken
or provided with the occupier's consent is
admissible as evidence against the owner in
any proceeding against the owner for an
offence against this Act.
30
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(3) An authorised officer must not enter land under
subsection (1) for a purpose described in that
subsection if the occupier of the land has not
consented to entry of the land for that purpose.
5
(4) The power to enter land under this section—
(a) is subject to any conditions of the consent
and ceases if the consent is withdrawn; and
(b) does not enable an authorised officer to enter
any building on that land.
10
(5) An authorised officer who enters land under this
section for a purpose described in
subsection (1)(a), (b) or (c) may—
(a) search and examine the land or vegetation or
equipment on the land; and
15
20
(b) take photographs, video recordings or
measurements of the land.
(6) Any photographs, video recordings or
measurements taken under subsection (5)(b) are
not admissible as evidence against the owner in
any proceeding against the owner for an offence
against this Act.
(7) An authorised officer who enters land under this
section for the purpose described in
subsection (1)(d) may—
25
(a) search and examine the land or vegetation or
equipment on the land; and
(b) take photographs, video recordings or
measurements of the land; and
(c) make enquiries of any person on the land;
and
30
(d) without payment, take or ask the occupier to
provide a sample of any vegetation, soil or
substance from the land.
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(8) Any photograph, video recording or measurement
taken under subsection (7)(b), information
provided under subsection (7)(c) or sample taken
or provided under subsection (7)(d) is admissible
as evidence against the owner in any proceeding
against the owner for an offence against this Act.
99 Acknowledgement of consent to entry and search
under section 98
10
15
(1) Subject to this section, if an occupier of land
consents to the entry to the land by an authorised
officer under section 98, the officer must, before
entering the premises, ask the occupier to sign an
acknowledgment.
(2) For the purpose of subsection (1), the
acknowledgment must state—
(a) that the occupier has been informed—
(i) of the purpose of the entry; and
(ii) of the powers intended to be exercised
to achieve the purpose of the entry; and
20
(iii) that the occupier is not required to
consent to the exercise of all or any of
those powers; and
(iv) that consent may be given subject to
conditions and may be withdrawn at
any time; and
25
(b) if entry to the land is for the purpose
described in section 98(1)(d), that the
occupier has been informed that any
photograph, video recording, measurement,
information or sample taken or provided
with the occupier's consent is admissible as
evidence in proceedings; and
30
(c) that the occupier has consented to the entry;
and
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(d) that the occupier has consented to the
purpose of the entry; and
(e) the conditions, if any, to which the occupier's
consent is subject; and
5
10
(f) the date and time that the occupier
consented.
(3) If an occupier of land consents to the taking of
any thing by the authorised officer, the officer
must, before taking the thing, ask the occupier to
sign an acknowledgement.
(4) For the purpose of subsection (3), the
acknowledgment must state—
(a) that the occupier has consented to the taking
of the thing; and
15
(b) the date and time that the occupier
consented.
(5) An authorised officer must give a copy of a signed
acknowledgement to the occupier before leaving
the land.
20
100 Power to enter land with notice
(1) Subject to this section, after having given 7 days'
notice to the occupier of private land, an
authorised officer may enter the land for one or
more of the following purposes—
25
(a) determining whether the owner of the land
has complied with a native vegetation
management agreement to which the land is
subject;
(b) verifying information contained in an
application under section 9 or 20 for the
creation of native vegetation credits for the
land;
30
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(c) verifying information contained in a report
submitted under Division 2 in relation to the
land;
(d) with the consent of the occupier of the land,
determining whether an offence against this
Act has been or is being committed.
5
(2) An authorised officer who enters land under this
section may—
(a) search and examine the land or vegetation or
equipment on the land; and
10
(b) take photographs, video recordings or
measurements of the land.
15
(3) An authorised officer who enters land under this
section may, with the consent of the occupier of
the land—
(a) make enquiries of any person on the land;
and
(b) without payment, take or ask the occupier to
provide a sample of any vegetation, soil or
substance from the land.
20
(4) The power to enter land under this section does
not enable an authorised officer to enter any
building on that land.
25
30
35
(5) A photograph, video recording or measurement
taken under subsection (2) or information or
sample taken or provided under subsection (3) is
not admissible as evidence against the owner in
any proceeding against the owner for an offence
against this Act unless the occupier of land has
consented to entry under subsection (1) for the
purpose described in subsection (1)(d).
(6) An authorised officer who enters land under this
section must not do so between the hours of
6.00 p.m. and 7.30 a.m. unless the occupier
consents.
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(7) Notice given under subsection (1) must be in
writing and must inform the occupier—
(a) of the purpose of entry; and
(b) that the occupier must allow the entry and
the exercise of powers under subsection (2);
and
5
(c) that the occupier may refuse to consent to the
exercise of powers under subsection (3); and
(d) if entry to the land is for the purpose
described in subsection (1)(d), that any
photograph, video recording or measurement
taken under subsection (2) or information or
sample taken or provided under
subsection (3) is admissible as evidence
against the owner in any proceeding against
the owner for an offence against this Act.
10
15
101 Acknowledgement of things to be taken under
section 100
20
(1) If the occupier is present when an authorised
officer exercises a power of entry under
section 100 and the occupier consents to the
taking of any thing, the officer must before taking
the thing ask the occupier to sign an
acknowledgment stating—
25
(a) that the occupier has consented to the taking
of the thing; and
(b) the date and time that the occupier
consented.
30
35
(2) An occupier who signs an acknowledgment must
be given a copy of the signed acknowledgment
before the authorised officer leaves the land.
(3) If the occupier is not present when an authorised
officer exercises a power of entry under
section 100, the authorised officer must, on
leaving the land, leave a notice setting out—
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(a) the time of entry; and
(b) the purpose of entry; and
(c) a description of all things done while on the
land; and
5
(d) the time of departure; and
(e) the procedure for contacting the Secretary
for further details of the entry.
102 Power to enter land with warrant
10
15
20
25
(1) An authorised officer may apply to a magistrate
for the issue of a search warrant in relation to
particular private land if the officer believes on
reasonable grounds that there is on the land
evidence of the commission of an offence against
this Act.
(2) If a magistrate is satisfied by the evidence, on oath
or by affidavit of the authorised officer that there
are reasonable grounds to believe that there is a
thing or things of a particular kind on the land that
are connected with the commission of an offence
against this Act, the magistrate may issue a
warrant, in accordance with the Magistrates'
Court Act 1989, authorising an authorised officer
named in the warrant, together with any person
assisting the authorised officer and any other
person or persons named or otherwise identified in
the warrant and with any necessary equipment—
(a) to enter the land named or described in the
warrant, by force if necessary; and
(b) to re-enter that land, by force if necessary, if
re-entry is specified in the warrant; and
30
(c) to do any one or more of the following things
specified in the warrant—
(i) search for and seize a thing or things of
a particular kind;
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(ii) inspect, extract or copy a document or
document of a particular kind;
(iii) inspect and take photographs, video
recordings or measurements of the
land;
5
(iv) with whatever assistance is required,
take and keep samples of any
vegetation, soil or substance from the
land named or described in the warrant
and which the authorised officer
believes, on reasonable grounds, to be
connected with the alleged commission
of an offence.
10
15
(3) A search warrant issued under this section must
state—
(a) the purpose for which the search is required
and the nature of the alleged offence; and
(b) any conditions to which the warrant is
subject; and
20
(c) whether entry and, if specified in the
warrant, re-entry is authorised to be made at
any time of the day or night or during stated
hours of the day or night; and
(d) a day, not later than 28 days after the issue of
the warrant, on which the warrant ceases to
have effect.
25
30
(4) A search warrant issued under this section
authorises an authorised officer named in the
warrant, in addition to the seizure of any thing of
the kind described in the warrant, to seize or take
a sample of any thing which is not of the kind
described in the warrant if—
(a) the officer believes on reasonable grounds
that the thing—
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(i) is of a kind which could have been
included in a search warrant issued
under this section; or
(ii) will afford evidence about the
contravention of this Act; and
5
(b) in the case of the seizure of a thing, the
officer believes on reasonable grounds that it
is necessary to seize that thing in order to
prevent its concealment, loss or destruction
or its use in the contravention of this Act.
10
(5) Except as provided by this Act, the rules to be
observed with respect to search warrants under the
Magistrates' Court Act 1989 extend and apply to
warrants under this section.
15
(6) Despite subsection (4) or anything in the
Magistrates' Court Act 1989, a warrant under
this section does not authorise an authorised
officer to arrest a person.
103 Announcement before entry on warrant
20
(1) Before executing a search warrant under
section 102, the authorised officer named in the
warrant, or a person assisting the authorised
officer, must—
(a) announce that the officer, or person assisting
the officer, is authorised by the warrant
issued under this Act to enter the land; and
25
(b) give any person on the land an opportunity to
allow that entry.
30
(2) However, the authorised officer, or person
assisting the authorised officer, need not comply
with subsection (1) if the officer, or person
assisting the officer, believes on reasonable
grounds that immediate entry to the land is needed
to ensure—
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(a) the health or safety of any person; or
(b) that the effective execution of the warrant is
not frustrated.
104 Copy of warrant to be given to occupier
5
If an occupier or apparent occupier is present on
the land when a search warrant is being executed,
the authorised officer must give that person a copy
of the execution copy of the warrant.
105 Production of identification
10
(1) Subject to subsection (2), an authorised officer
must produce the officer's identification for
inspection—
(a) before entering land under this Division; and
(b) if asked to do so, at any time during the
exercise of any power under this Division
unless the request is unreasonable in the
circumstances.
15
20
(2) Subsection (1)(a) does not apply to an authorised
officer who has entered land under section 98 or
100 if the occupier of the land is not present at the
time of entry.
106 Offences relating to enforcement
(1) A person must not, without reasonable excuse—
(a) obstruct, hinder, intimidate or attempt to
obstruct, hinder or intimidate an authorised
officer in exercising the officer's powers
under this Act; or
25
(b) interfere with anything done by an
authorised officer in the exercise of the
officer's powers under this Act.
30
Penalty: 60 penalty units.
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(2) A person must not provide information or produce
a document to an authorised officer that the
person knows to be false or misleading in a
material respect.
5
Penalty: 60 penalty units.
107 Duty to minimise inconvenience or damage
In entering land under this Division, an authorised
officer must—
(a) cause as little inconvenience or damage as is
reasonably possible; and
10
(b) remain on the land only for so long as is
reasonably necessary; and
(c) leave the land, as far as is reasonably
possible, in the condition in which it was
immediately before the entry; and
15
(d) must, as far as is reasonably possible,
cooperate with the owner and occupier.
108 Requirements as to taking samples and seizure
20
25
(1) In exercising a power under this Division, an
authorised officer may not take samples of a thing
or seize a thing apparently in the possession of a
person unless the officer provides that person with
a written receipt for the sample taken or thing
seized.
(2) If the officer is unable to ascertain the identity of
the owner or custodian of the thing seized or
sampled, the officer must leave a receipt with or
post it to the person apparently in charge of the
thing seized.
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109 Analysis and return of samples
(1) If an authorised officer proposes to take a sample
under this Division, the officer must—
(a) advise the owner, if possible before taking
the sample, that the sample is taken for the
purpose of analysis; and
5
(b) advise the owner that the owner may
nominate a person to analyse part of the
sample; and
10
(c) forward a part of the sample that is sufficient
for analysis—
(i) to any person nominated by the owner;
and
(ii) to a qualified person nominated by the
officer; and
15
(d) keep part of the sample untouched for future
comparison; and
(e) unless the sample is a noxious weed, return
the remainder of the sample to the person
from whom it was taken within 28 days if the
sample is not required for the purposes of a
proceeding under this Act.
20
(2) In this section—
25
qualified person means a person who has been
approved by the Secretary under section 88A
of the Conservation, Forests and Lands
Act 1987.
Division 4—Enforcement
110 Power of Secretary to give directions
30
(1) If the Secretary is satisfied that an owner of
private land has failed to meet a requirement
specified in a native vegetation management
agreement to which the land is subject, the
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Secretary may, by notice in writing, direct the
owner—
(a) to meet that requirement subject to any
conditions specified in the notice; or
5
(b) to take measures specified in the notice,
being measures that the Secretary thinks
necessary to secure compliance with the
agreement.
(2) A notice giving directions under subsection (1)—
10
(a) must specify the period during which the
owner of the land must comply with the
directions, being not less than 28 days
beginning on the issue of the notice; and
(b) must include a statement that if a direction
under subsection (1) is not complied with
within the period specified in the notice or, if
that period is extended under subsection (3),
that extended period—
15
(i) the Secretary may cancel under
section 82 native vegetation credits
created for the land; or
20
(ii) the Secretary may under section 112
take any action necessary to ensure
compliance with the direction; or
25
(iii) the Secretary may apply to VCAT for
an order under section 113; or
(iv) the owner may be liable to criminal
proceedings for the contravention of the
native vegetation management
agreement.
30
(3) The Secretary may, on application by the owner,
extend the period specified in subsection (2).
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111 Automatic suspension of native vegetation credits
(1) A notice giving directions under section 110
suspends a native vegetation credit if—
(a) the credit was created in relation to land
subject to the native vegetation management
agreement in relation to which the directions
were given; and
5
(b) the credit has not been transferred to a
person other than the owner of the land; and
10
(c) the credit is not allocated under Part 7.
(2) If a native vegetation credit is suspended under
subsection (1), the Secretary must lodge with the
Registrar of Native Vegetation Credits a
notification for the recording of the suspension.
15
20
25
(3) On the lodgement of a notification under
subsection (2), the Registrar of Native Vegetation
Credits must record the suspension in the Native
Vegetation Credit Register.
(4) The suspension of a native vegetation credit under
subsection (1) ends when the Secretary is satisfied
that the owner of land, or the owner's successor in
title, has complied with the directions contained in
the notice that suspended the credit.
(5) When the Secretary is satisfied that the owner of
land or the owner's successor in title has complied
with the directions, the Secretary must—
(a) notify that person in writing that the
Secretary is satisfied that the directions have
been complied with; and
30
(b) lodge with the Registrar a notification that
the suspension has ended.
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(6) On the lodgement of a notification under
subsection (5)(b), the Registrar of Native
Vegetation Credits must record the ending of the
suspension in the Native Vegetation Credit
Register.
112 Secretary may take action required by notice
10
(1) The Secretary may take any action necessary to
ensure compliance with a direction given under
section 110 if the owner of land fails to comply
with the direction—
(a) within the period specified in the notice; or
(b) if the period described in paragraph (a) is
extended under section 110(3), within the
extended period.
15
20
25
(2) The Secretary may authorise a person and any
person assisting that person to enter land and do
anything that the Secretary reasonably considers
to be necessary for the purposes of subsection (1).
(3) If a person is authorised to enter land under
subsection (2), the Secretary must give the owner
and the occupier of the land at least 7 days' notice
of the entry.
(4) In entering land under this section, a person
authorised under subsection (2) or a person
assisting an authorised person must—
(a) cause as little inconvenience or damage as is
reasonably possible; and
(b) remain on the land only for so long as is
reasonably necessary; and
30
(c) leave the land, as far as is reasonably
possible, in the condition in which it was
immediately before the entry; and
(d) must, as far as is reasonably possible,
cooperate with the owner and occupier.
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(5) The Secretary may recover as a debt in a court of
competent jurisdiction any expenses necessarily
incurred in carrying out any action under
subsection (1).
5
Note
An amount awarded under section 112(5) may be a charge
on land (see section 115).
113 Enforcement orders
10
15
(1) Subject to subsection (3), if an owner of private
land fails to meet a requirement of a native
vegetation management agreement to which the
land is subject or a direction given under
section 110, the Secretary may apply to VCAT for
an enforcement order.
(2) On an application under subsection (1), VCAT
may make any order it considers fair, including
one or more of the following—
(a) an order requiring the owner of the land to
carry out or refrain from carrying out a
specified activity relating to the protection or
improvement of native vegetation on that
land; or
20
(b) an order requiring the owner to provide an
offset for any loss of native vegetation
resulting from the owner's failure to comply;
or
25
(c) an order cancelling any native vegetation
credits held by the owner.
30
(3) The Secretary may apply for an order under
subsection (1) only if it is not possible in the
circumstances to give a direction under
section 110 to substantially the same effect.
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114 Injunctions
The Secretary may apply to a court of competent
jurisdiction for an injunction restraining an owner
of private land from—
5
(a) breaching a native vegetation management
agreement to which that land is subject; or
(b) contravening an enforcement order granted
by VCAT under section 113.
115 Amount due to Secretary is a first charge on land
10
(1) An amount awarded under section 112(5)
or 123(7) against an owner of private land as a
debt for expenses incurred by the Secretary is a
first charge on that land until the amount is
recovered by the Secretary.
15
(2) Land is charged under this section on the making
of the order of the court awarding the amount
under section 112(5) or 123(7).
20
(3) As soon as practicable after an award is made
under section 112(5) or 123(7), the Secretary must
apply to the Registrar of Titles to record notice of
the charge in the Land Register.
(4) An application under subsection (3) must—
(a) describe the land charged; and
(b) state the amount awarded under
section 112(5) or 123(7).
25
30
(5) On an application under subsection (3), subject to
the Transfer of Land Act 1958, the Registrar of
Titles must record notice of the charge and the
amount with which the land is charged in the Land
Register.
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(6) The Secretary must notify the owner of land in
writing that—
(a) notice of the charge is recorded in the Land
Register; and
5
10
15
20
25
(b) the land is charged with the amount stated in
the notice.
(7) A charge under this section does not bind a bona
fide purchaser of the land for value without notice
or a person deriving title from that person until
notice of the charge is recorded in the Land
Register.
(8) As soon as practicable after an amount owed is
paid or recovered, the Secretary must lodge with
the Registrar of Titles an application for the
removal of the recording of the notice of the
charge from the Land Register.
(9) On an application under subsection (8), subject to
the Transfer of Land Act 1958, the Registrar of
Titles must remove the notice of the charge from
the Land Register and, on that removal, the charge
on the land is removed.
(10) The recording or removal of a notice of a charge
in the Land Register may be done under this
section without submission to the Registrar of
Titles of any relevant certificate of title.
116 Power of sale
(1) The Secretary may apply to a court of competent
jurisdiction for an order permitting the sale of land
that is subject to a charge under section 115 if—
30
(a) a notice of the charge under section 115 has
been recorded on the title to the land for
12 months or more; and
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(b) an amount is owing under the charge; and
(c) the Secretary has attempted, but has failed to
recover the amount owing under the charge.
5
(2) The court may make an order permitting the
Secretary to sell the land under this section if
satisfied as to the matters referred to in
subsection (1)(a) to (c).
10
(3) The court may make an order that the person in
possession of the certificate of title or other
document required by the Registrar of Titles
produce that certificate or document for the
purposes of the sale of land under this section.
15
(4) If the court makes an order permitting the
Secretary to sell the land, the Secretary must cause
a notice of intention to sell the land to be served
on any person recorded in the Land Register as
having an interest in the land.
(5) A notice under subsection (4) must—
(a) be in writing and contain any particulars
prescribed for the purposes of this section;
and
20
(b) be served in the prescribed manner not less
than one month before the intended sale; and
(c) state—
25
(i) the amount owing at the date of the
notice; and
(ii) that the sale will not proceed if
payment is made within one month of
the service of the notice; and
30
(iii) the address at which payment may be
made.
(6) Section 77 of the Transfer of Land Act 1958
applies to a sale of land pursuant to an order under
subsection (2) as if—
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(a) the charge were a registered first mortgage,
registered in priority to other encumbrances
to which the land is subject; and
(b) the Secretary were a mortgagee under that
mortgage; and
5
(c) the requirement relating to the giving of
notice were deleted.
Division 5—Offences
10
15
117 Removal, destruction or lopping of protected native
vegetation
An owner of private land must not intentionally or
recklessly remove, destroy or lop native
vegetation on that land if a native vegetation
management agreement to which the land is
subject requires that native vegetation to be
protected or maintained.
Penalty: 1200 penalty units.
118 Damage or degradation to protected native
vegetation
20
(1) An owner of private land must not fail to meet a
requirement in a native vegetation management
agreement to which the land is subject if—
(a) the owner was aware or it was reasonable for
the owner to be aware of that requirement;
and
25
(b) the failure to meet the requirement results in
damage or degradation to native vegetation
required to be protected or maintained under
that agreement.
30
Penalty: 600 penalty units.
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(2) An owner of private land must not use the land or
permit the land to be used in a manner that does
not comply with a native vegetation management
agreement to which the land is subject if—
5
(a) the owner was aware or it was reasonable for
the owner to be aware of that agreement; and
(b) the failure to comply with the agreement
results in damage or degradation to native
vegetation required to be protected or
maintained under that agreement.
10
Penalty: 600 penalty units.
15
(3) It is a defence to a charge under subsection (1)
or (2) for the person charged to prove that the
person took all reasonable steps to comply with
the native vegetation management agreement.
119 Compliance with native vegetation management
agreement
20
(1) An owner of private land must not fail to meet a
requirement in a native vegetation management
agreement to which the land is subject.
Penalty: 120 penalty units.
25
(2) An owner of private land must not use the land or
permit the land to be used in a manner that does
not comply with a native vegetation management
agreement to which the land is subject.
Penalty: 120 penalty units.
30
(3) It is a defence to a charge under subsection (1) or
(2) for the person charged to prove that the person
took all reasonable steps to comply with the native
vegetation management agreement.
120 Orders to undertake specified works
(1) If a court convicts a person or finds a person
guilty of an offence against this Act, the court
may make an order—
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(a) requiring the offender to carry out or refrain
from carrying out a specified activity relating
to the protection or improvement of native
vegetation; or
5
(b) requiring the offender to provide an offset
for any loss of native vegetation resulting
from the offence; or
(c) cancelling any native vegetation credits held
by the offender.
10
15
(2) The order may specify conditions that must be
complied with in undertaking the specified works.
(3) The court must not make an order under this
section unless it is satisfied that the costs of
complying with the order do not exceed the
maximum penalty amount that the court may
impose on the offender for the offence concerned.
(4) The court may make an order under this section in
relation to an offender in addition to or instead
of—
20
(a) imposing a penalty on the offender; or
(b) making any other order that the court may
make in relation to the offence.
Division 6—Enforceable undertakings
121 Enforceable undertakings
25
(1) The Secretary may enter into a written
undertaking with a person if that person—
(a) is the owner of private land that is subject to
a native vegetation management agreement;
and
30
(b) has failed to comply with, or allegedly failed
to comply with, that agreement.
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(2) An undertaking under subsection (1) must specify
the nature and details of the person's failure or
alleged failure to comply with a native vegetation
management agreement.
5
(3) A person may with the consent of the Secretary
withdraw or vary an undertaking.
122 Effect of undertakings
10
15
20
(1) While an undertaking is in force, proceedings may
not be brought for an offence constituted by the
failure to comply or alleged failure to comply in
respect of which the undertaking is given.
(2) If an undertaking is withdrawn before it is
fulfilled, proceedings may be brought for the
offence constituted by the failure to comply or
alleged failure to comply in respect of which the
undertaking was given.
(3) If a person complies with the requirements of an
undertaking, no further proceedings may be
brought for an offence constituted by the failure to
comply or alleged failure to comply in respect of
which the undertaking was given.
123 Enforcement of undertakings
25
30
(1) If the Secretary considers that the person who
gave an undertaking under section 121 has
breached a term of the undertaking, the Secretary
may apply to the Magistrates' Court for an order
under subsection (2).
(2) If the Magistrates' Court is satisfied that the
person has breached a term of the undertaking, the
Magistrates' Court may make any of the following
orders—
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(a) an order directing the person to comply with
that term of the undertaking;
(b) an order that the person take any specified
action for the purpose of complying with the
undertaking;
5
(c) any other order that the Magistrates' Court
considers appropriate in the circumstances.
10
(3) If a person fails to comply with an order made
under subsection (2), the Secretary may take any
action necessary to ensure compliance with the
undertaking to which the order relates.
15
(4) The Secretary may authorise a person and any
person assisting that person to enter land and do
anything that the Secretary reasonably considers
to be necessary for the purposes of subsection (3).
20
(5) If it is necessary for a person authorised under
subsection (4) to enter land under subsection (4),
the Secretary must give the owner and the
occupier of the land at least 7 days' notice of the
entry.
(6) In entering land under this section, a person
authorised under subsection (4) must——
(a) cause as little inconvenience or damage as is
reasonably possible; and
25
(b) remain on the land only for so long as is
reasonably necessary; and
(c) leave the land, as far as is reasonably
possible, in the condition in which it was
immediately before the entry; and
30
(d) must, as far as is reasonably possible,
cooperate with the owner and occupier.
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Part 11—Reporting, Enforcement and Compliance
(7) The Secretary may recover as a debt in a court of
competent jurisdiction any expenses necessarily
incurred in carrying out any action under
subsection (3).
5
Note
An amount awarded under section 123(7) may be a charge
on land (see section 115).
10
(8) Nothing in this section prevents contempt of court
proceedings from being started or continued
against a person who has failed to comply with an
order made under subsection (2).
124 Register of undertakings
(1) The Secretary must maintain a register of
undertakings given under section 121.
15
(2) The Secretary must enter details of each
undertaking given under section 121 in the
register of undertakings.
(3) The register of undertakings must include—
(a) the date the undertaking was given; and
20
(b) a copy of the undertaking.
(4) A person may inspect the register of undertakings
at any reasonable time without charge.
Division 7—Review or reconsideration of decisions
125 Definition
25
In this Division—
reviewable decision means a decision—
(a) to reject an application for the creation
of native vegetation credits under
section 12; or
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(b) to amend the potential gain in an
application for the creation of native
vegetation credits under section 12(3);
or
5
(c) under section 75(4) to—
(i) reject an application to approve a
transfer of native vegetation
credits; or
(ii) request an applicant to vary the
consideration provided for the
transfer of credits; or
10
(d) to cancel a native vegetation credit
under section 81 or 82.
126 Reconsideration of decisions
15
20
(1) Within 28 days after the making of a reviewable
decision, the applicant for or holder of native
vegetation credits that are the subject of the
reviewable decision may, by written notice, apply
to the Secretary for a reconsideration of that
decision.
(2) An application under subsection (1) must set out
the reasons for the application.
25
(3) The Secretary or person authorised by the
Secretary must, within 28 days after the Secretary
receives the application, reconsider the reviewable
decision, and must make a decision—
(a) in substitution for the reviewable decision,
whether in the same terms as the reviewable
decision or not; or
30
(b) revoking the reviewable decision.
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(4) A person may not reconsider a reviewable
decision under subsection (3) if the person made
the reviewable decision.
5
10
(5) If, as a result of a reconsideration under
subsection (3), the Secretary or person authorised
by the Secretary makes a decision in substitution
for or revoking a reviewable decision, the
Secretary must, by written notice given to the
applicant for the reconsideration inform the
applicant of the result of the reconsideration.
Note
The applicant may request a statement of reasons for a
decision under section 45 of the Victorian Civil and
Administrative Tribunal Act 1998.
15
127 Review of decisions by VCAT
(1) A person may by written notice apply to VCAT
for a review of a reviewable decision if the person
has applied for a reconsideration of the reviewable
decision under section 126 and either—
20
(a) the person has received notice of the
reconsideration under section 126(5); or
(b) the 28-day period within which the
reconsideration must take place under
section 126(3) has expired.
25
(2) An application under subsection (1) must be
lodged with VCAT within 28 days after—
(a) the applicant receives notice under
section 126(5) or the 28-day period
referred to in subsection (1)(b) expires,
whichever is the sooner; or
30
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(b) if, under section 45 of the Victorian Civil
and Administrative Tribunal Act 1998, the
person requests a statement of reasons for the
decision, the day on which the statement of
reasons is given to the person or the person is
informed under section 46(5) of that Act that
a statement of reasons will not be given.
5
(3) An application under subsection (1) must set out
the reasons for making the application.
__________________
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Part 12—General
s. 128
PART 12—GENERAL
128 Secretary may set fees for services provided by
Department employees
5
10
(1) The Secretary may, by notice in the Government
Gazette, fix fees for the provision of any service
under this Act provided by a person employed
under Part 3 of the Public Administration Act
2004 acting as a qualified assessor.
(2) In setting fees, the Secretary may provide for one
or both of the following matters—
(a) specific fees;
(b) maximum fees.
15
(3) A fee set under subsection (1) must not exceed
any maximum amount prescribed for the purposes
of this section.
129 Secretary may approve forms
(1) The Secretary may approve forms for the purposes
of this Act.
20
(2) The Secretary must ensure forms approved under
subsection (1) are—
(a) available at the offices of the Department of
Environment and Primary Industries; and
(b) published on the Internet site of the
Department of Environment and Primary
Industries.
25
130 Regulations
(1) The Governor in Council may make regulations
for or with respect to—
(a) fees for the purposes of this Act;
30
(b) the manner or method for the determination
or calculation of—
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(i) the habitat importance score for a site
or a biodiversity class area;
(ii) the potential gain for a site or a
biodiversity class area;
5
(iii) the strategic biodiversity score for a site
or a biodiversity class area;
(iv) the relative importance of a site as
habitat for an identified species of rare
or threatened flora or fauna;
10
(c) prescribing an electronic system or computer
program or the criteria of an electronic
system or computer program that may be
used to make a determination or calculation
under this Act and any fees payable for the
operation of any such system or program;
15
(d) the criteria that are to be taken into account
during a determination or calculation under
this Act;
(e) prescribing a threshold for the purposes of
section 5;
20
(f) prescribing a native vegetation management
agreement fee under Part 5;
(g) prescribing agreements or arrangements for
the purposes of sections 12(2)(d), 17(4)(b),
18(4)(a) and 23(2)(e);
25
(h) information that must be contained in an
application under this Act;
(i) eligibility criteria for sites;
(j) the nature and attributes of native vegetation
credits;
30
(k) purposes for which native vegetation credits
may be allocated;
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(l) circumstances in which an allocation of
native vegetation credits for a prescribed
purpose may be reversed;
(m) prescribing for the purposes of sections 75
and 76 a percentage by which consideration
for the transfer of native vegetation credits
may vary;
5
(n) terms and conditions to be included in native
vegetation management agreements;
10
(o) details of site management plans;
(p) details of vegetation improvement plans;
(q) the manner in which payments from the
Fund are calculated;
(r) criteria for qualified assessors;
15
(s) the provision of training and testing for
qualified assessors and fees for that testing or
training;
(t) information that must be contained in the
record for a native vegetation credit or in the
Native Vegetation Credit Register;
20
(u) forms;
(v) any other matter or thing required or
permitted by this Act to be prescribed or
necessary to be prescribed to give effect to
this Act.
25
(2) A power conferred by this Act to make
regulations may be exercised—
(a) either in relation to all cases to which the
power extends, or in relation to all those
cases subject to specified exceptions, or in
relation to any specified cases or classes of
case; and
30
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(b) so as to make, with respect to the cases in
relation to which the power is exercised—
(i) the same provision for all cases in
relation to which the power is
exercised, or different provisions for
different cases or classes of case, or
different provisions for the same cases
or classes of case for different
purposes; or
5
10
(ii) any such provision either
unconditionally or subject to any
specified condition.
(3) Regulations made under this Act may be made—
(a) so as to apply—
15
(i) at all times or at a specified time; or
(ii) throughout the whole of the State or in
a specified part of the State; or
(iii) as specified in both subparagraphs (i)
and (ii); and
20
(b) so as to require a matter affected by the
regulations to be—
(i) in accordance with a specified standard
or specified requirement; or
(ii) approved by or to the satisfaction of
specified persons or specified classes of
person; or
25
(iii) as specified in both subparagraphs (i)
and (ii); and
(c) so as to apply, adopt or incorporate any
matter contained in any document, code,
standard, rule, specification or method
formulated, issued, prescribed or published
by any person whether—
30
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s. 130
(i) wholly or partially or as amended by
the regulations; or
(ii) as formulated, issued, prescribed or
published at the time the regulations are
made or at any time before then; or
5
(iii) as formulated, issued, prescribed or
published from time to time; and
(d) so as to confer a discretionary authority or
impose a duty on a specified person or
specified classes of person; and
10
(e) so as to provide in specified cases or classes
of case for the exemption of persons or
things or classes of person or thing from any
of the provisions of the regulations, whether
unconditionally or on specified conditions
and either wholly or to such an extent as is
specified.
15
20
25
(4) If under subsection (3)(c)(iii) a regulation has
applied, adopted or incorporated any matter
contained in any document, code, standard, rule,
specification or method as formulated, issued,
prescribed or published from time to time and that
document, code, standard, rule, specification or
method is at any time amended, the document,
code, standard, rule, specification or method is for
the purpose of the regulation to be taken to have
not been so amended until notice of the
amendment is published in the Government
Gazette.
__________________
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Part 13—Consequential Amendments and Transitional Provisions
PART 13—CONSEQUENTIAL AMENDMENTS AND
TRANSITIONAL PROVISIONS
Division 1—Transitional Provisions
131 Definition
5
In this Division—
security agreement means an agreement or
covenant entered into for the purpose of
creating pre-existing credits under—
(a) section 69 of the Conservation,
Forests and Lands Act 1987; or
10
(b) section 3A of the Victorian
Conservation Trust Act 1972; or
(c) section 173 of the Planning and
Environment Act 1987.
15
132 Pre-existing credits
(1) The Minister may by Order identify credits that
exist before the commencement of this Act.
20
(2) An Order under subsection (1) must specify the
following in relation to each credit identified by
the Order—
(a) the name and address of the holder of the
credit;
(b) if the credit is created in relation to private
land, details of the security agreement
entered into for the purpose of creating the
credit;
25
(c) if the credit is created in relation to Crown
land, a description of the land in relation to
which the credit was created;
30
(d) if the credit is created in relation to private
land, a description of the land that is subject
to the security agreement;
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(e) information that is to form the nature and
attributes of the credit;
(f) the value assigned to the credit;
(g) the details of any transfer of the credit before
the commencement of this Act, including the
date of the transfer and any consideration
provided for the transfer;
5
(h) the details of any allocation of the credit
before the commencement of this Act;
10
(i) a statement that the credit existed before the
commencement of this Act;
(j) any information prescribed for the purposes
of this section.
15
20
(3) On the making of an Order under subsection (1),
the Registrar of Native Vegetation Credits must
make a record in the Native Vegetation Credit
Register for the pre-existing credits identified in
the Order containing the information specified in
the Order.
(4) If a pre-existing credit is recorded in the Native
Vegetation Credit Register, Parts 1, 6, 7 and 8
(except sections 72, 74, 75 and 76) and, if the
credit is created for land subject to a security
agreement, section 97 applies to the credit as if—
25
(a) the credit were a native vegetation credit
created under Part 2 or Part 3; and
(b) if the credit is created in relation to private
land, a reference to the native vegetation
management agreement is a reference to the
security agreement specified in the Order
under subsection (1) that identified the
credit; and
30
(c) a reference to an allocation under Part 7
includes a reference to an allocation before
the commencement of the Act that is
35
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s. 133
specified in the Order under subsection (1)
that identified the credit; and
(d) a reference to a transfer under Part 8 includes
a transfer before the commencement of the
Act that is specified in the Order under
subsection (1) that identified the credit.
5
Division 2—Consequential Amendments
133 Conservation, Forests and Lands Act 1987
10
15
(1) In section 11(3A) and (3B) of the Conservation,
Forests and Lands Act 1987, after "National
Parks Act 1975," insert "the Native Vegetation
Credit Market Act 2014,".
(2) In Schedule 1 to the Conservation, Forests and
Lands Act 1987, after "National Parks Act
1975." insert "Native Vegetation Credit Market
Act 2014.".
See:
Act No.
41/1987.
Reprint No. 8
as at
21 July 2011
and
amending
Act Nos
65/2011,
43/2012,
67/2013 and
24/2014
LawToday:
www.
legislation.
vic.gov.au
134 Crown Land (Reserves) Act 1978
After section 20A of the Crown Land (Reserves)
Act 1978 insert—
20
"20B Land to be managed consistently with
vegetation improvement plan
If the whole or a part of land reserved under
this Act is subject to a vegetation
improvement plan within the meaning of the
Native Vegetation Credit Market
Act 2014, the person responsible for the
management of that land under this Act must
ensure that any works carried out relating to
the management, improvement and
protection of native vegetation on the land
25
30
571370B.I-27/5/2014
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BILL LA INTRODUCTION 28/5/2014
See:
Act No.
9212.
Reprint No. 10
as at
1 July 2011
and
amending
Act Nos
64/2004,
65/2010,
7/2012,
17/2012,
46/2012,
31/3013,
79/2013 and
30/2014.
LawToday:
www.
legislation.
vic.gov.au
Native Vegetation Credit Market Bill 2014
s. 135
Part 13—Consequential Amendments and Transitional Provisions
are carried out in accordance with that
vegetation improvement plan.".
135 National Parks Act 1975
5
10
15
See:
Act No.
8702.
Reprint No. 14
as at
14 November
2012
and
amending
Act Nos
38/1989,
17/2013,
45/2013 and
79/2013.
LawToday:
www.
legislation.
vic.gov.au
After section 16B of the National Parks Act
1975 insert—
"16C Land to be managed consistently with
vegetation improvement plan
If land that constitutes the whole or any part
of a park under this Act is subject to a
vegetation improvement plan within the
meaning of the Native Vegetation Credit
Market Act 2014, the person responsible for
the management of that land under this Act
must ensure that any works relating to the
management, improvement and protection of
native vegetation on the land are carried out
in accordance with that vegetation
improvement plan.".
136 Planning and Environment Act 1987
20
25
See:
Act No.
45/1987.
Reprint No. 11
as at
28 October
2013
and
amending
Act Nos
70/2013 and
17/2014.
LawToday:
www.
legislation.
vic.gov.au
(1) In section 3(1) of the Planning and Environment
Act 1987 insert the following definitions—
"native vegetation credit has the same meaning as
it has in the Native Vegetation Credit
Market Act 2014;
offset condition has the same meaning as it has in
the Native Vegetation Credit Market Act
2014;
third party land, in relation to an offset condition,
means land that—
30
(a) is not subject to the offset condition;
and
(b) is not owned by the person who must
satisfy the offset condition;
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third party offset, in relation to an offset
condition, means the satisfaction of that
offset condition on third party land;".
5
(2) After section 6(4A) of the Planning and
Environment Act 1987 insert—
"(4B) Subject to section 6B, a planning scheme
may regulate or provide for the quantity,
nature or attributes of native vegetation
credits required to satisfy offset conditions.".
10
(3) After section 6A of the Planning and
Environment Act 1987 insert—
"6B Allocation of native vegetation credits
15
(1) The holder of native vegetation credits may
allocate those credits under section 63 of the
Native Vegetation Credit Market Act 2014
to satisfy an offset condition in a planning
scheme.
20
(2) An offset condition in a planning scheme
may not be satisfied by a third party offset
other than the allocation of native vegetation
credits under section 63 of the Native
Vegetation Credit Market Act 2014.
25
(3) Subsection (2) does not apply in relation to
an offset condition that applies to land within
the Melbourne Strategic Assessment Area
within the meaning of the Native Vegetation
Credit Market Act 2014.".
(4) After section 56(2) of the Planning and
Environment Act 1987 insert—
30
35
"(2A) Subject to section 62(4A), (4B) and (4C), the
conditions specified by the referral authority
may include a condition providing for the
quantity, nature or attributes of native
vegetation credits required to satisfy an
offset condition.".
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Part 13—Consequential Amendments and Transitional Provisions
(5) After section 62(2)(g) of the Planning and
Environment Act 1987 insert—
"(h) subject to subsections (4A), (4B) and (4C), a
condition providing for the quantity, nature
or attributes of native vegetation credits
required to satisfy an offset condition; and".
5
(6) After section 62(4) of the Planning and
Environment Act 1987 insert—
"(4A) The holder of native vegetation credits may
allocate those credits under section 63 of the
Native Vegetation Credit Market Act 2014
to satisfy an offset condition in a permit.
10
15
(4B) An offset condition in a permit may not be
satisfied by a third party offset other than the
allocation of native vegetation credits under
section 63 of the Native Vegetation Credit
Market Act 2014.
20
(4C) Subsection (4B) does not apply in relation to
an offset condition that applies to land within
the Melbourne Strategic Assessment Area
within the meaning of the Native Vegetation
Credit Market Act 2014.".
137 Traditional Owner Settlement Act 2010
25
30
35
See:
Act No.
62/2010.
Reprint No. 1
as at
8 March 2013
and
amending
Act No
42/2013.
LawToday:
www.
legislation.
vic.gov.au
(1) After section 28(q) of the Traditional Owner
Settlement Act 2010 insert—
"(qa) the preparation of a vegetation improvement
plan under section 28 of the Native
Vegetation Credit Market Act 2014;".
(2) After section 29(m) of the Traditional Owner
Settlement Act 2010 insert—
"(ma) in relation to the preparation of a vegetation
improvement plan under section 28 of the
Native Vegetation Credit Market Act
2014, the Crown land manager, within the
meaning of that Act;".
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s. 138
138 Wildlife Act 1975
After section 18B of the Wildlife Act 1975
insert—
5
"18C Land to be managed consistently with
vegetation improvement plan
If land that constitutes the whole or any part
of a State Wildlife Reserve under this Act is
subject to a vegetation improvement plan
within the meaning of the Native Vegetation
Credit Market Act 2014, the person
responsible for the management of that land
under this Act must ensure that any works
relating to the management, improvement
and protection of native vegetation on the
land are carried out in accordance with that
vegetation improvement plan.".
10
15
139 Repeal of Division 2
This Division is repealed on 1 July 2016.
Note
20
The repeal of this Division does not affect the continuing operation
of the amendments made by it (see section 15 of the
Interpretation of Legislation Act 1984).
═══════════════
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See:
Act No.
8699.
Reprint No. 9
as at
27 April 2012
and
amending
Act Nos
65/2010,
46/2012,
82/2012,
4/2013,
11/2014 and
24/2014.
LawToday:
www.
legislation.
vic.gov.au
Native Vegetation Credit Market Bill 2014
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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