National recovery plan for Boronia granitica (Granite Boronia)

NSW National Parks and Wildlife Service, July 2002
ISBN 0 731 36889 4

7 Relevant legislation

7.1 Recovery plan preparation and implementation

Recovery plan preparation

The TSC Act requires that the Director-General of National Parks and Wildlife prepare recovery plans for all species, populations and ecological communities listed as endangered or vulnerable on the TSC Act schedules. Similarly, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) requires the Commonwealth Minister for the Environment ensure the preparation of a recovery plan for nationally listed species and communities or adopt plans prepared by others including those developed by state agencies. Both Acts include specific requirements for the matters to be addressed by recovery plans and the process for preparing recovery plans.

This recovery plan has been prepared to satisfy the requirements of both the TSC Act and the EPBC Act. It is the intention of the Director-General of National Parks and Wildlife to forward the final version of this recovery plan to the Commonwealth Minister for the Environment for adoption, once it has been approved by the NSW Minister for the Environment.

Recovery plan implementation

The TSC Act requires that a government agency must not undertake actions inconsistent with a recovery plan. The government agency responsible for actions in this plan is the NPWS. Consequently, the NPWS must manage Boronia granitica populations in accordance with this recovery plan. Where B. granitica occurs on private property (eg. Parlour Mountain) and on permissive occupancy or leasehold lands (eg. Howell), the implementation of the recovery plan will largely depend on cooperative management of the species between the relevant title holder and the NPWS.

In some cases, where further approvals may be needed under the Native Vegetation Conservation Act 1997 (NVC Act) or the Environmental Planning and Assessment Act 1979 (EP&A Act), other public authorities may be involved as part of their core legislative responsibilities. Public authorities, other than the NPWS, with core legislative responsibilities relevant to the protection of B. granitica and its habitat are listed in Table 6.

The EPBC Act specifies that a Commonwealth agency must not take any action that contravenes a recovery plan.

Table 6: Public Authority Responsibilities
Organisation Relevant responsibilities
Relevant councils include Guyra, Tenterfield and Severn
  • Preparation of Local Environmental Plans under Part 3 of EP&A Act.
  • Consent authorities for development proposals under Part 4 of EP&A Act.
  • Approval authorities for council works under Part 5 of EP&A Act.
  • Responsibilities under Rural Fires Act 1997.
Department of Land and Water Conservation
  • Approval authority for native vegetation clearance applications under NVC Act.
  • Management of Crown Land with potential habitat.
  • Coordination of Regional Vegetation Management Committees, Total Catchment Management and Landcare programs.
  • Coordination of voluntary property agreements and Native Vegetation Incentive Fund.
Department of Urban Affairs and Planning
  • Development of policy and strategies for land-use planning and environmental assessment.
  • Advice and assistance on environmental planning matters
  • Assessment of major development applications.
Department of Mineral Resources
  • Approval authority for activity proposals under Part 5 of EP&A Act.

7.2 State legislation

National Parks and Wildlife Act 1974 and Threatened Species Conservation Act 1995

The TSC Act makes provision for identification and declaration of critical habitat for species, populations and ecological communities listed as endangered. Once declared, it becomes an offence to damage critical habitat and a species impact statement is mandatory for all developments and activities proposed within critical habitat. Nomination of critical habitat for B. granitica will only be considered as a management option where other, more cooperative, approaches are unavailable.

Environmental Planning and Assessment Act 1979

The TSC Act amendments to the environmental assessment provisions of the EP&A Act require that consent and determining authorities consider threatened species and their habitat when exercising a decision-making function under Parts 4 and 5 of the EP&A Act. Therefore, when considering any development or activity within known or potential habitat of B. granitica, the determining authorities should consider the conservation strategy set out in this plan.

Native Vegetation Conservation Act 1997

The purpose of the NVC Act is the conservation and sustainable management of native vegetation and in particular the protection of native vegetation of high conservation significance. Under this Act, approval from the Department of Land and Water Conservation (DLWC) is a prerequisite for clearing of native vegetation unless a Regional Vegetation Management Plan has been approved or unless the clearing is an exemption under the NVC Act. There remains potential for significant and cumulative clearing to occur under these exemptions. The Act requires that the Director-General of National Parks and Wildlife be consulted in the matter of threatened species and their habitat. Landholders may enter into voluntary property agreements with DLWC whereby government assistance can be provided to protect native vegetation under the Native Vegetation Incentive Fund. No regional vegetation management plan or property agreements relating to the habitat of B. granitica have yet been prepared.

Rural Fires Act 1997

Bush Fire Risk Management Committees must prepare draft bush fire risk management plans for their respective rural fire districts and are obliged to consider threatened species conservation. These plans may restrict or prohibit the use of fire and other fire hazard reduction activities in all or specified circumstances or places to which the plan applies. In particular, an adopted bush fire risk management plan may modify or prohibit hazard reduction activities in threatened species habitat.

Forestry and National Park Estate Act 1998

The Forestry and National Park Estate Act 1998 puts into effect the outcomes of the Government's Regional Forest Agreement. The agreement outlines licence conditions for threatened species within State Forests of NSW estate. These include a general licence condition that a standard 20 metre exclusion zone is to be applied around all rocky outcrops and cliffs greater than 0.1 hectares in area and another condition that 20 metre exclusion zones be applied around all known B. granitica populations. It is recommended that these conditions also be included in Regional Vegetation Plans being prepared by DLWC under the NVC Act.

7.3 Commonwealth legislation

Environment Protection and Biodiversity Conservation Act 1999

The EPBC Act provides a legislative framework for the protection of endangered and vulnerable species across Australia. An important role of the EPBC Act is to facilitate the preparation and implementation of recovery plans for species listed under the Act in cooperation with the States in which populations of listed species occur. The Act also seeks to impose the obligation (arising from the listing) for responsible agencies (particularly Commonwealth) to adopt protective measures. This recovery plan will be submitted to the Commonwealth for approval under the EPBC Act.

Under the EPBC Act, critical habitat may be registered for any nationally listed threatened species or ecological community. When adopting a recovery plan the Commonwealth Minister for the Environment must consider whether to list habitat identified in the recovery plan as being critical to the survival of the species or ecological community. It is an offence under the EPBC Act for a person to knowingly take an action that will significantly damage critical habitat (unless the EPBC Act specifically exempts the action). This offence only applies to Commonwealth areas. However, an action which is likely to have a significant impact on a listed species is still subject to referral and approval under the EPBC Act.

As B. granitica is listed nationally under the EPBC Act, any person proposing to undertake actions likely to have a significant impact on this species should refer the action to the Commonwealth Minister for the Environment for consideration. The Minister will then decide whether the action requires EPBC Act approval. This is in addition to any State or Local Government approval requirement specified for the NSW EP&A Act.

Administrative guidelines are available from Environment Australia to assist proponents in determining whether their action is likely to have a significant impact. In cases where the action does not require EPBC Act approval, but will result in the death or injury of a member of the species and the member is in, or on a Commonwealth area, a permit issued by the Commonwealth Minister under the EPBC Act, will be required.