New Land Clearing Laws. Jemilah Hallinan Outreach Director Community Programs

Transcription

1 New Land Clearing Laws Jemilah Hallinan Outreach Director Community Programs

2 Overview 1. Why are we here? 2. Allowable Activities 3. Code-based Clearing 4. Approvals 5. Clearing for a purpose that needs development consent 6. Legal Challenge to the Native Vegetation Code

3 Why are we here? Gone Changed New Threatened Species Conservation Act Native Vegetation Act Nature Conservation Trust Act National Parks and Wildlife Act Local Land Services Act Environmental Planning and Assessment Act Biodiversity Conservation Act SEPP (Vegetation in Non-Rural Areas) 2017

4 Local Land Services Act 2013 Replaces the 1. Native Vegetation Act Native Vegetation Regulation Environmental Outcomes Assessment Method. Introduces 1. Allowable activities 2. Native Vegetation Code 3. Native Vegetation Panel Land use map Identifies excluded, regulated and exempt land Biodiversity Conservation Act Establishes the Biodiversity Offset Scheme Underpinned by the Biodiversity Assessment Method

5 Banned broad-scale clearing unless it maintained or improved environmental outcomes Environmental Outcomes Assessment Methodology RAMAs allowable activities Consent or PVP to clear Native Veg Act LLSA Act No ban on broad-scale clearing No maintain-or-improve standard No mandatory soil, water and salinity assessment Regulatory map Expands allowable clearing Self assessable codes Approval still required in some cases Clearing in urban areas and E zones Council permit or approval of Native Vegetation Panel Native Veg SEPP

6 Who s in charge? Minister for Primary Industries Local Land Services

7 key definitions Native vegetation Means any of the following types of plants native to New South Wales: trees (including any sapling or shrub or any scrub); understorey plants; groundcover (being any type of herbaceous vegetation); or plants occurring in a wetland. Native vegetation does not include marine vegetation (being mangroves, seagrasses or any other species of plant that at any time in its life cycle must inhabit water other than fresh water). Clearing Means: cutting down, felling, uprooting, thinning, killing destroying poisoning ringbarking burning, or otherwise removing native vegetation.

8 Hierarchy of clearing Allowable activities No approval required Minimum extent necessary Coastal zone, Central zone, Western zone Code-based No approval required if done in accordance with the code May require certification from LLS May require set-asides Approval required For clearing that is not otherwise authorised Only for clearing that does NOT require development consent, an SSI approval or an activity approval under the EPA Act. Native Vegetation Panel

9 SCDI NVR Map Native Vegetation Regulatory Map ADS Imagery SCDI regulatorymap.htm

10 3 land categories

11 What is exempt land? was cleared of native vegetation as at 1 January 1990 was lawfully cleared of native vegetation between 1 January 1990 and 25 August 2017 contains low conservation value grasslands contains native vegetation that has previously been identified in a PVP as regrowth has been bio-certified

12 What is regulated land? was not cleared of native vegetation as at 1 January 1990 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 public funds (other than funds for forestry purposes) contains grasslands that are not low conservation grasslands is subject to a private land conservation agreement is a set aside under a Land Management (Native Vegetation) Code is an offset under a property vegetation plan or a set aside under the former native vegetation laws 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 is identified as koala habitat is a declared RAMSAR wetland is mapped as containing critically endangered species of plants or a critically endangered ecological community

13 What is vulnerable regulated land? Vulnerable regulated land is land that is: steep or highly erodible land, protected riparian land, or special category land.

14 What is sensitive regulated land? Same as regulated land is subject to a private land conservation agreement is a set aside under a Land Management (Native Vegetation) Code is subject to an approved conservation measure that was the basis for other land being biocertified is an offset under a property vegetation plan or a set aside under former native vegetation laws is identified as coastal wetlands or littoral rainforest Additional criteria is subject to a requirement to take remedial action to restore or protect the biodiversity values of the land contains rainforests is in the Southern Mallee Planning Group Region and subject to a lease requiring the conservation of the land contains old-growth forests is required to be set aside for nature conservation, revegetation or as a native vegetation offset as a condition of consent

15 is identified as koala habitat is a declared RAMSAR wetland is mapped as containing critically endangered species of plants or a critically endangered ecological community contains low conservation grassland beneath the canopy or dripline of woody vegetation that meets the criteria for classification as category 2 land contains native vegetation that is required to be retained as a condition of plantation authorisation was subject to a Trust Agreement was subject to a registered property agreement was subject to a conservation or incentive Property Vegetation Plan is subject to a conservation agreement is (or was previously) subject to a private native forestry plan or to a Property Vegetation Plan that authorised the clearing of native vegetation for the purposes of forestry operations

16 What is excluded land? Excluded land includes: Urban areas (including specified local government areas and specified urban zones) The national park estate State forestry land Lord Howe Island

17 The NVR Map Viewer

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20 Land can be re-categorised The CEO of OEH can re-categorise land if: There is an error in a published map They obtain new information about the historical vegetation cover or use of land Landholders of Category 2 regulated land can apply for their land to be recategorised as Category 1 exempt land. Land can be re-categorised if it has been lawfully cleared after 25 August 2017 Landholders can request a review of their land categorisation if they believe there is an error in the mapping.

21 Allowable Activities

22 General requirements Clearing for allowable activities is generally permissible without an authorisation, provided the clearing: is to the minimum extent necessary for that purpose is carried out by or on behalf of the landholder (unless another party is specifically authorised) is not carried out on land that is subject to a stop work order, interim protection order, remediation order or biodiversity offsets enforcement order.

23 Zones and small landholdings NSW is divided into 3 zones for the purpose of allowable activities: Western Zone Central Zone Coastal Zone The rules around allowable activities can differ according to the zone. There are special rules for small landholdings

24 What are allowable activities? Clearing for the following purposes is an allowable activity: 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 to collect firewood for exempt farm forestry to harvest timber that has been planted for a traditional Aboriginal cultural activity for environmental protection works for the construction, operation or maintenance of public infrastructure 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 for the maintenance of public utilities associated with the transmission of electricity during the course of sustainable grazing clearing of mulga for stock fodder for the construction, operation or maintenance of an airstrip for a firebreak in the Western Zone

25 Clearing for rural infrastructure The clearing of native vegetation for the construction, operation or maintenance of rural infrastructure is allowable if: the infrastructure is rural infrastructure in the relevant Zone or holding in which it is located, and the clearing does not exceed the maximum distance 30 metres in the Central Zone 12 metres on a small holding or for temporary fences Rural Infrastructure in the Central Zone: Fences Roads/tracks Irrigation channels/pipelines Stock or domestic supply pipelines/dams/tanks/windmills/bores/pumps Soil conservation earthworks Telephone lines/cables Shearing machinery Grain, hay or similar sheds

26 Allowable activities on vulnerable or sensitive regulated land Clearing for allowable activities must: be undertaken in a manner that minimises the risk of soil erosion be reasonably necessary to remove an imminent risk of serious personal injury or damage to property be for environmental protection works be for the maintenance of public utilities associated with the transmission of electricity be for the construction or maintenance of boundary fencing (6 metres) be for the construction or maintenance of other fencing if reasonably required to improve the management of land (6 metres) be for the construction or maintenance of farm tracks be during the course of sustainable grazing

27 Code-based Clearing

28 New Land Management (Native Vegetation) Code 2017 Prepared by the Minister for Primary Industries Concurrence from the Environment Minister Sets out rules for clearing native vegetation on Category 2 regulated land Clearing in accordance with the Code is authorised

29 Content of the Code Invasive native species permits clearing of native vegetation that has been identified as an invasive native species, and permits certain agricultural activities in treatment areas in certain circumstances. Pasture expansion - permits a range of clearing of woody native vegetation, by uniform thinning and mosaic thinning. Continuing use - permits clearing of post-1990 regrowth in previously cleared areas; permits continuation of clearing consistent with land management activities undertaken prior to 25 August 2017; permits clearing associated with a rotational land management activity and authorises re-categorisation of land in certain circumstances

30 Content of the Code 4 5 Equity - enables the removal of paddock trees, compromised native groundcover, and native vegetation from small areas in exchange for setaside areas containing remnant vegetation. Farm plan - enables the removal of paddock tree areas and clearing regulated rural land in exchange for set aside areas containing remnant vegetation or set aside areas where re-vegetation will be required.

31 Permitted clearing The type of clearing that is authorised by the Code. E.g. the Equity Code authorises the clearing of native vegetation from paddock tree areas at a rate of one paddock tree area for each 50 hectares of landholding within any 12 month period. Requirements prior to clearing Sets out the preconditions for clearing which usually relate to notifying LLS and/or obtaining a mandatory code compliant certificate before commencing clearing. Landholding restrictions Some parts of the Code don t apply to certain land. Restrictions may be based on the size of the landholding (clearing under the Code is not permitted on small landholdings) or on the zone (clearing under the Code is not permitted in the Coastal Zone). Other restrictions may relate to how the land is mapped (clearing under the Code is only permitted if at least 30% of the land is mapped as Category 2).

32 Treatment area restrictions This restriction relates to the proportion of the land that is to be cleared. It may limit the total cumulative treatment areas to a certain percentage of the landholding. Method and impact conditions These conditions are designed to avoid and minimise the environmental impacts of the clearing. The conditions may require no more than minimal disturbance to soil and groundcover or prohibit clearing within a specified buffer distance from a water body. Re-categorisation of land Some parts of the Code specify the circumstances in which the treatment area can be re-categorised as Category 1 exempt land once the clearing has been carried out

33 Set-aside area requirement Some parts of the Code (Farm Plan and Equity Code) require the clearing of native vegetation in the treatment area to be offset by the establishment of a set-aside area The Code also sets out the requirements for establishing the set-aside area, including the size of the set-aside in relation to the treatment area Clearing of the treatment are cannot happen until the set-aside is registered The landholder: Must not clear native vegetation on the set aside area other than as required or authorised by the Code or certificate (includes allowable activities) Must carry out the land management activities required by the Code or the certificate

34 Land not suitable for set-asides Land that is covered by a Private Land Conservation Agreement (Bio Con Act) Land that was subject to a Trust Agreement or Conservation Agreement Land that was subject to an offset requirement, or was a conservation area or subject to incentive funding under a property vegetation plan Land that contains native vegetation that was grown or preserved with the assistance of public funds, other than funds for forestry purposes, while the obligations attached to that funding are ongoing Land that is subject to a requirement to take remedial action Land that is subject to an approved conservation measure that was the basis for the land being biocertified; Land that is required to be set aside for nature conservation, as a condition of development consent Land that that is required to be retained under a condition of an authorisation for a plantation Land in the Southern Mallee Planning Group Region that is subject to a lease that requires the conservation of the area through the prohibition of grazing and active conservation management Land that is set aside for biodiversity purposes because of any other agreement or legal obligation

35 Notification and Certification Notification A landholder who intends to rely on the Code to authorise clearing must notify Local Land Services of the clearing unless the code exempts the landholder from giving notice. If the Code requires notice to be given, it will specify how the notice is to be given and the timing of the notice. Once notice is given, it is effective for 15 years from the date of the notice. Certification The Code may require a landholder to have their intended Code-based clearing certified by LLS. If LLS is satisfied that the proposed clearing will be carried out in accordance with the relevant Code it will issue a mandatory code compliant certificate. Even where certification is not required by the Code, a landholder may choose to apply to LLS for a certificate confirming that the proposed clearing complies with the relevant Code. If LLS is satisfied that the proposed clearing will be carried out in accordance with the Code it will issue a voluntary code compliant certificate.

36 Restrictions on Code-based clearing The Code only authorises clearing within the relevant treatment area. The Code does not apply to: Category 2 sensitive land Land that contains native vegetation that was grown or preserved with the assistance of public funds (other than funds for forestry purposes) while the obligations attached to those funds are ongoing. The Code does not authorise clearing native vegetation that forms part of a critically endangered ecological community. A person undertaking Code-based clearing must not knowingly harm a threatened animal species. The Code does not authorise clearing for forestry purposes, although it is permissible to sell any timber that is lawfully cleared under the Code.

37 Code requirements can be varied Landholders can apply to LLS to vary the requirements of a Code. LLS can issue an authorised code variation certificate if LLS is satisfied that: The proposed variation is for a legitimate purpose associated with the management of the land concerned; The variation is reasonable in the circumstances; and The environmental impact of the variation would only be minor.

38 Approvals Where Clearing is Not Otherwise Authorised

39 Approvals to clear If proposed clearing is not an allowable activity and is not code-compliant, the landholder may be able to seek approval to clear from the Native Vegetation Panel. The clearing must be proposed over land that comprises or includes Category 2 regulated land. The clearing must be for a purpose that: does not require development consent or State significant infrastructure approval under the EPA Act does not require an activity approval under the EPA Act.

40 Native Vegetation Panel The Panel is to consist of 3 members appointed by the Minister for Primary Industries: 1. a Chairperson, with expertise in planning, public administration or social assessment, 2. a person with expertise in economics, agricultural economics or agricultural land production systems, 3. a person with expertise in ecology or the protection and conservation of biodiversity. The Panel determines applications for approval to clear native vegetation under the SEPP (Vegetation in Non-Rural Areas)

41 Process for seeking approval to clear Application Landholder applies to NVP for approval to clear and submits a Biodiversity Development Assessment Report Evaluation The NVP must consider the environmental, social and economic impacts of the proposed clearing (in accordance with ESD) Determination (within 90 days) The NVP can approve (subject to conditions) or refuse the application

42 Biodiversity development assessment report Prepared by an accredited assessor. Applies the Biodiversity Assessment Method (BAM) Identifies the biodiversity values of the land Identifies the impacts of the proposed actions Indicates what is required to offset the proposed actions

43 Responding to biodiversity impacts of clearing If the Panel decides to grant approval, the conditions of the approval must require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class set out in the Report. Biodiversity credits can be reduced or increased if justified having regard to the environmental, social and economic impacts of the development.

44 Meeting Biodiversity Offset Scheme obligations Options include, in any combination: a. Retire like-for-like biodiversity credits b. Retire credits under variation rules c. Fund an action to benefit the species or ecological community impacted d. Mine site rehabilitation e. Pay $ to the Biodiversity Conservation Fund instead.

45 Like-for-like offset rules Put simply: protect the same species (plant or animal), habitat or ecosystem as the one being impacted. BUT Quite flexible protect same threatened ecological community at a site within 100km; protect same species (koalas) at an offset site anywhere in NSW.

46 Variation rules (after reasonable steps to find L-4-L offsets) If like-for-like credits can t be found after reasonable steps have been taken, offsets don t need to be like-for-like. E.g. Impact on one threatened ecological community or veg. type - offset it with certain others (same veg. formation; in same bioregion or within 100km of site) Clear hollow-bearing trees - offset with artificial hollows Impact on one animal species - offset with another animal species at equal or higher risk of extinction (in same or nearby subregion).

47 Paying $ into the Fund The applicant can use the Offsets Payment Calculator to determine the cost of the credit obligation, and transfer this amount to the Biodiversity Conservation Fund. The Biodiversity Conservation Trust is then responsible for identifying and securing the credit obligation.

48 Clearing for a purpose that needs development consent

49 Clearing for a purpose that needs development consent Where the clearing is part of an application to develop the land, the clearing will be assessed by the relevant consent authority Council or Department of Planning/PAC. Depending on the proposal, the Biodiversity Offset Scheme may apply. Applications for major projects (SSD and SSI) the BOS applies unless the Secretary of Planning and the CEO of OEH decide the proposed development is not likely to have any significant impact on biodiversity values. All other development applications (other than complying development) The BOS if the proposed development is likely to significantly affect threatened species.

50 Likely to significantly affect threatened species Development or an activity is likely to significantly affect threatened species if: the clearing exceeds the BOS threshold, or it meets significant effects test for threatened species, or it is carried out in a declared area of outstanding biodiversity value.

51 Does the BOS apply? YES. Is the clearing for a purpose that needs development consent? YES. Is it a major project BOS applies NO. YES. BOS applies Will it significantly affect threatened species? NO. BOS doesn t apply. SEE/EIS

52 Legal challenge to the Native Vegetation Code

53 NCC v Minister for Primary Industries and Another Challenge to the validity of the Land Management (Native Vegetation) Code: Minister for Primary Industries did not obtain the agreement of the Minister for the Environment before the Code was made Both Ministers failed to have proper regard to certain principles of ESD when making (or giving concurrence) to the Code

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