Native vegetation and biodiversity update: streamlining approvals

Property, Planning & Environment eBulletin - 22 October 2013

Summary

Balancing development and protecting native vegetation has been a politically sensitive issue for many years. Under current NSW and Federal systems, developers are required to undergo multiple approvals processes. Regulators are therefore looking at ways to reduce duplication in the assessment of developments, while also protecting the environment.

The newly-elected Commonwealth Government has recently announced its plans to reform the assessment approvals system under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The NSW Government is also in the process of reforming and reviewing laws which regulate the clearing of native vegetation in rural areas of NSW. As part of this review, the new Native Vegetation Regulation 2013 (NV Regulation 2013) commenced on 23 September 2013.

In this ebulletin, we provide a brief overview of:

  • the planned "one-stop shop" approvals framework under the EPBC Act; and
  • some of the key changes introduced by the NV Regulation 2013.

Quick links

 

EPBC Act approvals: "one-stop shop"

The newly elected Commonwealth Government has announced its proposed reforms to the approvals process under the EPBC Act for actions which have an impact on a matter of national environmental significance (MNES).

In order to streamline environmental approvals under the EPBC Act, the Commonwealth Government has announced a framework for achieving a "one-stop shop" for approvals.

The EPBC Act allows the Commonwealth to accredit the States to undertake environmental assessment and approvals on behalf of the Commonwealth via bilateral agreements. There is no bilateral agreement currently in place in NSW, so proposed actions that impact a MNES may be required to undergo multiple approvals processes, for example, under the NV Act and the Environmental Planning & Assessment Act 1979 (NSW) (EP&A Act) at the State level and under the EPBC Act at a Federal level.

The framework proposed is that the Commonwealth and willing states can enter into:

  • a memorandum of understanding confirming each party's co-operation to achieve a single assessment process; and
  • agreements to provide for both the approval and assessment of controlled actions under the EPBC Act (to be entered into over the next 12 months).

If an agreement is entered into concerning both the assessment and approval of actions which are likely to have an impact upon a MNES (for example, the clearing of certain threatened species of flora or endangered ecological communities), the required assessment and issuing of approvals under the EPBC Act would be undertaken by the NSW Government, rather than the Commonwealth Government.

This may streamline the approvals process for developments where multiple approvals are required from State and Federal Government, for example, in new release areas for housing and mining.

 

Regulation of clearing in NSW

The NV Act regulates the clearing of native vegetation in rural and regional areas of NSW, including coastal areas. Among other things, it provides that native vegetation cannot be cleared except in accordance with a development consent granted under the NV Act (NV Consent) or an approved property vegetation plan (PVP).

This requirement is in addition to any other requirement for approvals for the relevant works, such as development consent under the EP&A Act and approval under the EPBC Act.

However, the NV Act also contains a number of exemptions to the requirement to obtain NV Consent or a PVP. One of the key, and sometimes controversial, exemptions under the NV Act is clearing for routine agricultural management activities (RAMAs). Determining whether clearing is actually for a RAMA can be a difficult and complex exercise.

The NV Regulation 2013 commenced on 23 September 2013 and has replaced the Native Vegetation Regulation 2005. The NV Regulation 2013, among other things, has expanded and clarified the definition of RAMA and has also included new categories of RAMAs for which NV Consent or a PVP is not required under the NV Act.

Below is an outline of some of the key changes introduced by the NV Regulation 2013.

 

Expanded routine agricultural management activities

Rural Infrastructure

The NV Regulation 2013 has clarified the meaning of "rural infrastructure" as referred to in the meaning of RAMA in the NV Act (s.11(1)(a)).

  • “Rural infrastructure” is now defined in the NV Regulation to be a building, structure or work which is used for the purposes of or in connection with an "agricultural activity" or private native forestry that is being carried out on the land.
  • "Agricultural activity" has the same meaning as "agriculture" in the Standard Instrument Local Environmental Plan (Standard Instrument).

These changes mean landholders can continue to clear native vegetation without NV Consent or a PVP for the construction, operation and maintenance of rural infrastructure such as farm fences, dams, windmills, bores, stockyards and farm roads. However, what can be considered "rural infrastructure" has been more clearly defined. It should be noted that, clearing must still not exceed the minimum extent necessary for carrying out the activity, and prescribed buffer distances still apply.

Single dwelling

The single dwelling exemption has now been broadened to allow clearing for the purposes of constructing a: dual occupancy, dwelling house, secondary dwelling, semi-detached dwelling, rural worker's dwelling and ancillary development where the clearing is done in accordance with an approved development consent under the EP&A Act. Previously, this exception only applied to "single dwellings".

 

New routine agricultural management activities

Conservation purposes

The NV Regulation 2013 now provides that clearing in accordance with any of the following agreements is a RAMA:

  • conservation agreement under the National Parks and Wildlife Act 1974;
  • a biobanking or biodiversity certification agreement under the Threatened Species Conservation Act 1995;
  • a conservation agreement under the EPBC Act;
  • a trust agreement under the Nature Conservation Trust Act 2001; or
  • a property agreement under the Native Vegetation Conservation Act 1997.

Therefore, landowners or developers who have already entered into one of these conservation agreements (for example, as a requirement of a condition of development consent) will not be also be required to obtain a separate NV Consent in order to clear native vegetation. This is provided the clearing is done in accordance with the relevant conservation agreement.

Non-rural infrastructure

A new non-rural infrastructure RAMA has been introduced so that landholders in rural areas, who are not necessarily carrying out agricultural activities, can carry out clearing for certain non-rural infrastructure without NV Consent or a PVP. This includes, for example, certain permanent boundary fences, single sheds, access trails and tracks.

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Self-assessable code assessed clearing to be introduced

The NSW Government intends to introduce a new group of RAMAs where clearing will be allowed without NV Consent or a PVP, provided that a self-assessable code is in place and complied with. The codes will be enacted as ministerial orders under the NV Regulation 2013.

Self-assessable codes relating to clearing of paddock trees, invasive native species and thinning of native vegetation will be developed first and are expected to be released for public comment in October 2013 and to commence in early 2014.

Other codes may be developed to identify invasive native species and feral native species. These are expected to be prepared and exhibited in 2014.
A landholder relying on the codes will be required to give the Minister for the Environment (through the local catchment management authority (CMA)) notice of its intention to clear 14 days before the clearing is carried out.

 

Conclusion

Determining whether development consent under the NV Act is required, or whether an exemption applies, can be a complex exercise. The NV Regulation 2013 seeks to clarify the types of activities which are considered to be RAMAs and to streamline the process for obtaining necessary approvals to clear native vegetation under the NV Act.

However, given that significant penalties apply where clearing is carried out without the necessary approvals, landholders and developers must always ascertain whether development consent under the NV Act is required (in addition to any other required approvals, including under the EPBC Act) before undertaking any clearing. For directors and managers in particular, clearing without the requisite approval under the NV Act attracts executive liability.

Should you require further information in relation to the recent changes, or require advice in connection with the regulation of native vegetation, please do not hesitate to contact Breellen Warry or Alice Spizzo.

Authors
Natalie Rodwell | Lawyer
Breellen Warry | Senior Associate
Alice Spizzo | Partner

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All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.

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