Bushland Protection Jemilah Hallinan, Solicitor, EDO NSW
Overview 1. Rural land – What can be done? 2. Urban land and e- zones – What can be done? 3. Development assessment process – What can be done? 4. Scenarios
Clearing Rural Land
The native vegetation regulatory map https://www.lmbc.nsw.gov.au/Maps/index.html?viewer=NVRMap
Allowable activities • Reduce/remove imminent risk to person/property • to remove or reduce an imminent risk of serious personal injury or damage to property • to obtain timber for the construction, operation or maintenance of rural infrastructure • Obtain timber for rural • to collect firewood infrastructure (fencing) • for exempt farm forestry • to harvest timber that has been planted • for a traditional Aboriginal cultural activity • Firewood collection • for environmental protection works • for the construction, operation or maintenance of public infrastructure • Harvest planted timber • for the construction, operation or maintenance of gravel pits • for the construction, operation or maintenance of telecommunications infrastructure • for the construction, operation or maintenance of privately owned power lines • Public infrastructure • for the maintenance of public utilities associated with the transmission of electricity • during the course of sustainable grazing • clearing of mulga for stock fodder • Telecommunications • for the construction, operation or maintenance of an airstrip infrastructure • for a firebreak in the Western Zone • Privately owned power lines
Information • No right for public to be notified or to comment • Public register of certification of allowable activities (which is optional) • LLS must report annually on estimate of clearing as result of allowable activities • https://www.lls.nsw.gov.au/ sustainable-land- management/public- registers
Code-based clearing • was not cleared of native vegetation as at 1 January 1990 1. What clearing is permitted • was unlawfully cleared of native vegetation between 1 January 1990 and 25 August 2017 • contains native vegetation that was grown or preserved with the assistance of 2. Requirements prior to clearing public funds (other than funds for forestry purposes) • contains grasslands that are no t low conservation grasslands • is subject to a private land conservation agreement 3. Landholding restrictions • is a ‘set aside ’ under a Native Vegetation Code • is an offset under a property vegetation plan or a set aside under the former native vegetation laws 4. Treatment area restrictions • is subject to an approved conservation measure that was the basis for other land being bio-certified • is identified as coastal wetlands or littoral rainforest 5. Method and impact conditions • is identified as koala habitat • is a declared RAMSAR wetland 6. Re-categorisation of land • is mapped as containing critically endangered species of plants or a critically endangered ecological community 7. Set aside requirements
Information • No right for public to be notified or to comment • LLS must keep public register of aggregate information about: Notices of intent to rely on Code Certificates to certify clearing as Code-compliant • LLS must keep a public register of all set-aside areas • LLS must report annually on estimate of clearing as result of Code-based clearing • https://www.lls.nsw.gov.au/sustainable- land-management/public-registers
The case to challenge the Code “On the basis of the documents received under freedom of information laws, it appears that the Minister for the Environment failed to give proper, genuine and realistic consideration to the decision to grant concurrence for the making of the 2018 Code, and to the principles of Ecologically Sustainable Development (ESD), as required by law .”
Approvals to clear • Clearing that is not otherwise authorised. • The clearing must be for a purpose that does not require development consent under the EPA Act • Native Vegetation Panel • Triggers the Biodiversity Offsets Scheme
Information • No right for public to be notified or to comment • LLS must keep public register of all applications and approvals (including modifications) that have been granted • https://www.lls.nsw.gov.au/su stainable-land- management/public-registers
What can be done? • It is an offence to breach the land clearing laws – enforced via the BC Act • Authorised officers can enter land to determine if an offence has been committed • Stop work orders and interim protection orders • Remediation orders • Civil proceedings • Criminal prosecutions and penalty notices
Reporting clearing to the OEH • Take a photo if possible (without trespassing) • Record observations in writing • Note the date and time • Call the Environment Line 131 555 • Ask for an incident number (make a note) • Ask to be kept informed of any investigation/ enforcement action • You can make reports anonymously
Clearing in urban areas and environmental zones
Clearing in urban areas and e-zones • Regulated by the SEPP (Vegetation in non-rural areas) Some clearing requires council permit Some clearing requires approval from Native Vegetation Panel Some clearing is allowable without approval
The Biodiversity Offsets Scheme Threshold The Biodiversity Offsets Scheme Threshold 1. Clearing is greater than the limit for the lot size 2. The clearing is proposed on land that is on the biodiversity values map
Council permit Required where: 1. Clearing is for a purpose that doesn’t require development consent 2. Clearing is below the BOS threshold 3. The trees are covered by the Council’s Development Control Plan
Process for getting a Council permit Application – Landholder applies to Council for a permit to clear native vegetation Evaluation – there are no evaluation criteria in the SEPP Determination (within 28 days) – Council can approve or refuse the application
Native Vegetation Panel Approval Required where: 1. Clearing is for a purpose that doesn’t require development consent 2. Clearing exceeds the BOS threshold
Process for getting NVP approval Application – Landholder applies to NVP for approval, and submits an Biodiversity Development Assessment Report Evaluation – NVP must consider the environmental, social and economic impacts of the proposed clearing (in accordance with ESD) Determination (within 90 days) – NVP can approve or refuse the application
No No permit required No Are the trees covered by the Council’s DCP? Yes. Does the clearing exceed the BOS Apply to Council for a threshold? permit Yes. Apply to NVP for approval Only applies where clearing is NOT for a purpose that requires development consent
Clearing that is permitted without approval • Council or NVP is satisfied tree is dying or dead AND not required as habitat of native animals • Council is satisfied the tree is a risk to human life or property • Clearing is below the BOS threshold and trees to be cleared are not covered by Council’s DCP
Information • No right for public to be notified or to comment • No requirement for a public register
What can be done? • Breaching the SEPP - is it an offence? • Penalty notice? • Criminal prosecutions? • Broad investigative powers • There are no orders that can be issued by Council to comply with the SEPP • Civil enforcement • Encourage Council to update its DCP quickly and push for a comprehensive coverage of trees
Development Assessment Process
The Biodiversity Offsets Scheme • Triggered where clearing /development will have a significant effect on threatened species – 5 part test – BOS threshold – Areas of outstanding biodiversity value • Impacts on biodiversity must be assessed under the BAM • Impacts must be offset
Offsetting • Biodiversity credits are generated by landholders entering Stewardship Agreements to conserve and enhance the biodiversity values of their land. • Developers purchase and retire the appropriate credits to offset harm to biodiversity • Underpinned by the Biodiversity Assessment Method - BAM
Biodiversity Development Assessment Report • Identifies the biodiversity values of the land • Identifies the impacts of the proposed development or activity • Outline the actions proposed by the proponent to avoid or minimise the impacts of the development or activity; and • Specifies the number and class of biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values.
Local development • DA must be accompanied by a BDAR • Consent authority must consider the BDAR when assessing the DA • If consent is granted – conditions must require the impacts to be offset in accordance with BDAR – Consent authority can increase or reduce the number of credits to be retired if justified on social, economic or environmental grounds • Proponent must comply with condition before undertaking development • If development will have serious and irreversible impacts on biodiversity – consent must be refused
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