Posted on August 21, 2017 by Sue Puckeridge and Katie Mortimer
Be Ready: New Land Management and Biodiversity Conservation Laws Commencing – Part 2
This blog follows our previous post on the key changes to the current system for land management and biodiversity conservation in NSW. In this post we focus on the new processes for the clearing of native vegetation due to commence operation on 25 August 2017.
The LLSA Act repeals the Native Vegetation Act 2003 (‘NV Act’).
Where clearing of native vegetation (‘clearing’) is outside urban zones or within a rural zone, the Local Land Services Amendment Act 2016 (‘LLSA Act’), in conjunction with the Biodiversity Conservation Act 2016 (‘BC Act’) will apply.
Urban land, land within environmental zones and land within these areas that does not require development consent, will be regulated by the State Environmental Planning Policy (Urban Vegetation) 2017 (‘SEPP’) and the BC Act. The SIE for the SEPP indicates that the SEPP will provide two approval pathways for clearing that does not require development consent, depending upon whether land is above the Biodiversity Offset Scheme threshold or below the Biodiversity Assessment Method threshold.
Land to which the LLSA Act applies
The LLSA Act provides for a new Native Vegetation Regulatory Map (‘NVR Map’), which categorises rural land in the State.
Importantly, under the new framework if clearing is to take place, landholders (defined to include persons in lawful occupation or possession, or who have control or management, of land) self-assess what category their land falls into within the NVR Map and determine if approval is or is not required for the clearing.
The NVR Map will provide for categories of land (see our previous blog discussing these different categories):
- Category 1 – exempt land (land where the clearing of native vegetation can occur without approval),
- Category 2 – regulated land (land where the clearing of native vegetation must occur in accordance with the codes of practice (discussed below)),
- Category 2 – vulnerable regulated land (land of higher biodiversity value where approval for the clearing of vegetation is required under the LLSA Act). The Draft Local Land Services Amendment (Land Management—Native Vegetation) Regulation 2017 (‘Draft LLSA Reg’) has introduced a sub-category, sensitive regulated land. This includes, for example, lands such as Ramsar Wetlands, high value grasslands, land containing core koala habitat.
Land within urban and environmental zones will be excluded, as discussed above.
For this new system to be effective the accuracy and detail of the maps will be critical.
A draft NVR Map is to be published when the new system commences and a final map will come into effect in the first half of 2018. Following the publication of the draft NVR Map, landholders may seek a review of the categorisation of their property on the NVR Map (ss60K – 60L of the LLSA Act). A right of appeal to the Land and Environment Court against a decision to categorise or re-categorise land also exists (s60M).
Section 60F of the LLSA Act and the Draft LLSA Reg set out the transitional provisions to apply until an area is designated on the NVR Map. Until that time, landholders wishing to clear their land will need to determine if the vegetation is on regulated or unregulated land using the criteria established under the LLSA Act. The Draft NVR Map will not be operational for regulated land on which groundcover exists which could be cleared under s20 of the NV Act.
Clearing on Regulated Land
Clearing on regulated land can occur if it is:
- an ‘allowable activity’ under section 60Q and Schedule 5A of the LLSA Act. These provisions permit specified activities to be carried out without approval, such as the clearing of native vegetation to obtain timber for the purposes of constructing rural infrastructure on the same landholding, obtaining firewood to be used on the landholder’s land, clearing for the purpose of environmental protection works, clearing by a public authority to construct or maintain infrastructure.
- clearing pursuant to a land management (native vegetation) code (‘NV Code’).
Land Management (Native Vegetation) Codes
NV Codes will be made by the Minister for Primary Industries (‘Minister’) and will apply to category 2 regulated land.
The NV Codes can allow for the clearing of native vegetation by landholders, without any approval or other authority, if the clearing is carried out in accordance with the NV Code.
The Draft Land Management (Native Vegetation) Code 2017 has been exhibited for this purpose (‘Draft NV Code’). The Draft NV Code includes, amongst other things, parameters for clearing to remove invasive species, clearing to carry out certain agricultural activities and clearing for grazing and harvesting stock fodder purposes, as well as setting out criteria for any set-aside requirements to offset the impacts of clearing.
The NV Codes cannot permit clearing or other activities that, under the LLSA Act or another Act, would require an approval or other authority, or contravene a provision of the LLSA Act. Under the Draft LLSA Reg, the NV Codes will not apply to clearing on sensitive regulated land.
A NV Code may require a landholder to notify Local Land Services (‘LLS’) of the proposed clearing, unless the NV Code exempts the landholder from giving notice. If no exemption applies, once notified, LLS may issue three types of certificates:
- a certificate that confirms the proposed clearing is compliant with a Code (voluntary code compliant certificate),
- a certificate that is required by the Code before the clearing occurs (mandatory code compliant certificate), or
- a certificate that authorises minor variations of a Code when applied to the land set out in the certificate (authorised code variation certificate).
Clause 10 of the Draft NV Code sets out the notification requirements. By way of example, under the Draft NV Code, clearing of invasive species by management burning does not require notification but other types of clearing of invasive species may require either a voluntary code compliant certificate or a mandatory code compliant certificate depending on the type of clearing proposed.
The Environment Protection and Biodiversity Conservation Act 1999, continues to apply where clearing is likely to have a significant impact on a matter of environmental significance.
The new laws do not provide for Property Vegetation Plans (‘PVPs’) as under the current NV Act. PVPs can be ended under the Draft NV Code. If the land contains native vegetation identified as regrowth in a PVP it will be categorised as category 1 – exempt land. Land will be categorised as category 2 – regulated land if it is an offset under a PVP or set aside under a Ministerial order under Division 3 of the NV Act.
Approval under other legislation
The LLSA Act acknowledges that the clearing of native vegetation in a regulated area may occur if authorised under other legislation. Amongst others, this includes:
- a development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’),
- a State significant infrastructure approval under Part 5.1 of the EPA Act,
- it is ancillary to the carrying out of exempt development under the EPA Act,
- it was authorised by a biodiversity conservation licence under the BC Act, or
- it was authorised by a consent under Division 3 of Part 9 of the Roads Act 1993.
Significantly, section 60P of the LLSA Act requires that an environmental planning instrument may not be made to require development consent or other authorisation for the clearing of native vegetation only, where the LLSA Act applies.
Approval for clearing native vegetation not otherwise authorised
Under the new framework, the Minister is to establish a Native Vegetation Panel (‘Panel’) to determine applications for the clearing of native vegetation not otherwise authorised by another process such as through the NVR Map, or a NV Code.
The SIE for the SEPP indicates that the Panel can delegate its approval role for clearing in urban areas or environmental zones to a local Council.
When assessing an application for approval, the Panel must consider ‘the environmental, social and economic impacts of the proposed clearing (in accordance with the principles of ecologically sustainable development) having regard to the purpose to which the land is to be used‘ once cleared. If the application is not approved within 90 days of being made, it is deemed to be refused (s60ZF of the LLSA Act and cl 133 of the Draft LLSA Reg).
The Panel must refuse an application if in its opinion it is likely to have serious and irreversible impacts on biodiversity values (as determined under the BC Act).
The NSW Government is refining the regulations and the SEPP, in preparation for commencement of the legislative reforms. Recent news reports suggest that there have been several submissions to the government to delay the introduction of the new legislation. To date, there has been no suggestions from government that it is likely to do so.
We will provide further information on the reforms when the draft supporting instruments are finalised.
This blog was prepared with the assistance of Katie Mortimer. Should you wish to discuss the changes, please contact Sue Puckeridge, Partner on 8235 9702 or by email at firstname.lastname@example.org