ALERT – Land-clearing Code declared invalid
The Land and Environment Court of New South Wales has declared the Land Management (Native Vegetation) Code 2017 (‘Code‘) made under the Local Land Services Act 2013 (‘LLS Act‘) to be “invalid and of no effect”.
The declaration came as a result of a challenge to the Code brought by the Nature Conservation Council (‘NCC‘). We previously blogged about the NCC’s challenge to the validity of the Code here.
As reported in that blog, NCC alleged that the procedure required under section 60T of the LLS Act for the Code’s creation was not followed, as:
- the Minister for Primary Industries did not obtain the concurrence of the Minister for the Environment before making the Code (as required by s60T(2)), and
- both Ministers failed to have regard to the principles of ecologically sustainable development (as required by s60T(3)).
A judgment has not been published, but we understand that the declaration of invalidity was based on the first argument above. The Court may therefore not have considered the second.
Impacts of the decision
From 25 August 2017, when the Code was first introduced, landholders were required to use the Code in order to self-assess whether or not clearing required approval before being undertaken.
As a result of the Court’s decision, the lawfulness of any clearing of native vegetation o regulated land and undertaken in compliance with the requirements of the Code as it was thought to be, since 25 August 2017, could potentially be in doubt.
The Government will presumably seek to remake the Code after following the requirements of s60T.
We will report on any revised Code when it becomes publicly available.
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