ew Land Clearing Laws Jemilah Hallinan & Belinda Rayment Solicitors, EDO NSW

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1 ew Land Clearing Laws Jemilah Hallinan & Belinda Rayment Solicitors, EDO NSW

2 OVERVIEW Overview 1. Rural land 2. Urban land and e- zones 3. Development assessment process

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 Clearing rural land

5 The native vegetation regulatory map

6 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

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11 Allowable activities ALLOWABLE ACTIVITES 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 to collect firewood Obtain timber for rural for exempt farm forestry infrastructure (fencing) to harvest timber that has been planted for a traditional Aboriginal cultural activity for environmental protection works Firewood collection for the construction, operation or maintenance of public infrastructure for the construction, operation or maintenance of gravel Harvest pits planted timber 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 Public the transmission infrastructure of electricity during the course of sustainable grazing clearing of mulga for stock fodder for the construction, operation or maintenance of an airstrip Telecommunications for a firebreak in the Western Zone infrastructure Privately owned powerlines

12 Information 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 sustainable-landmanagement/publicregisters

13 Code-based clearing CODE-BASED CLEARING 1. What clearing is permitted was not cleared of native vegetation as at 1 January 1990 was unlawfully cleared of native vegetation between 1 January 1990 and 25 August Requirements prior to contains native vegetation that was grown or preserved clearing 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 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 is subject to an approved conservation measure that was the basis for other land being bio-certified 5. Method and impact is identified as coastal wetlands or littoral rainforest is identified as koala habitat conditions is a declared RAMSAR wetland is mapped as containing critically endangered species of plants or a critically endangered ecological community 4. Treatment area restrictions 6. Re-categorisation of land 7. Set aside requirements

14 RESTRICTIONS Does not authorise clearing outside treatment area Restrictions Does not apply to Category 2 - sensitive land Does not authorise clearing native vegetation that forms part of a critically endangered ecological community A person undertaking Codebased clearing must not knowingly harm a threatened animal species

15 Information 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 e-land-management/public-registers

16 APPROVALS TO CLEAR 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

17 Information 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 sustainable-landmanagement/publicregisters

18 Criminal prosecutions and penalty notices WHAT CAN BE DONE? It is an offence to What breach the can land be done? 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

19 REPORTING Reporting BREACHES TO clearing OEH to the OEH Take a photo if possible (without trespassing) Record observations in writing Note the date and time Call the Environment Line Ask for an incident number (make a note) Ask to be kept informed of any investigation/ enforcement action You can make reports anonymously

20 Clearing in urban areas and environmental zones

21 CLEARING IN URBAN AREA AND Clearing E-ZONES 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

22 Does the clearing exceed the BOS threshold? No Are the trees covered by the Council s DCP? Yes. Apply to NVP for approval No No permit required Yes. Apply to Council for a permit Only applies where clearing is NOT for a purpose that requires development consent

23 BOS Threshold - Map

24 BOS Threshold clearing table

25 COUNCIL PERMIT 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

26 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

27 NVP APPROVAL Native Vegetation Panel Approval Required where: 1. Clearing is for a purpose that doesn t require development consent 2. Clearing exceeds the BOS threshold

28 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

29 Clearing that is permitted without WHERE NO APPROVAL IS REQUIRED Council or NVP is satisfied tree is dying or dead AND not required as habitat of native animals approval 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

30 Information INFORMATION No right for public to be notified or to comment No requirement for a public register

31 WHAT CAN BE DONE? What can be done? Breaching the SEPP is an offence Penalty notice Criminal prosecutions Broad investigative powers There are no orders that can be issued by Council to force compliance with the SEPP Civil enforcement Encourage Council to update its DCP quickly and push for a comprehensive coverage of trees

32 Development assessment process

33 The Biodiversity THE Offsets BIODIVERSITY Scheme 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

34 Offsetting 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

35 BIODIVERSITY DEVELOPMENT ASSESSMENT REPORT Identifies the biodiversity values of the land Identifies the impacts of the proposed development or activity Outlines the actions proposed by the proponent to avoid or minimise the impacts of the development or activity Specifies the number and class of biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values.

36 Local development 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 Can be varied! Proponent must comply with condition before undertaking development If development will have serious and irreversible impacts on biodiversity consent must be refused

37 Major projects MAJOR PROJECTS DA must be accompanied by a BDAR unless Secretary of DoPE and CEO of OEH agree the development is not likely to have any significant impact on biodiversity values Consent authority must consider any BDAR when assessing the DA If consent is granted consent authority MAY require the impacts to be offset in accordance with BDAR (optional) Proponent must comply with any condition to offset before undertaking the development If development will have serious and irreversible impacts on biodiversity this must be taken into account and further mitigation measures considered but DA can still be approved.

38 SERIOUS AND Serious and irreversible impacts IRREVERSIBLE IMPACTS An impact that is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct

39 MEETING Meeting BOS BOS obligations OBLIGATIONS 1. Retire like-for-like credits 2. Retire credits under variation rules 3. Fund an action to benefit the species or EC impacted 4. Mine site rehabilitation 5. Pay $ into the Biodiversity Conservation Fund

40 1. Like-for-like offsetting LIKE FOR LIKE OFFSETS Protect the same species, habitat or ecosystem as the one being impacted. BUT with some flexibility protect same threatened ecological community at a site within 100km protect habitat for some threatened species within 100 km with offsets of equal or higher threatened status protect same species at an offset site anywhere in NSW.

41 2. Variation rules VARIATION RULES If like-for-like credits can t be found after reasonable steps have been taken, variation rules can be applied. Impacts on one threatened ecological community or vegetation type can be offset 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).

42 3. Fund an action to benefit the FUND AN ACTION TO BENEFIT THE SPECIES/EC BEING IMPACTED species/ec being impacted Fund targeted surveys across the entire predicted range of a species to identify locations and populations Fund research to understand the threats to a species and its management needs

43 4. Mine site rehabilitation MINE SITE REHABILITATION For State significant mining projects proponent can undertake ecological rehabilitation of the impacted site that has the same credit value as like for like credits

44 5. Pay $ into the Biodiversity Conservation Fund PAY $ INTO THE BIODIVERSITY CONSERVATION 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.

45 Where the BOS does not apply WHERE THE BOS DOES NOT APPLY No BDAR required no offsetting Environmental assessment according to the type of development: statement of environmental effects environmental impact statement species impact statement

46 Information INFORMATION Depending on type of development: Community may have a right to be notified and to comment on the application Development application (supporting documents) and approvals usually available online: Council website (DA tracker) Planning Panel website Major Projects register

47 WHAT CAN BE What DONE? can be done? Appeal rights: Judicial review Merits appeal Breaching the EPA Act is an offence Development without consent Development in breach of consent conditions Broad investigation powers Development Control Orders Criminal prosecutions and penalty notices Civil enforcement