Posted on December 16, 2013 by

New Native Vegetation Regulation to reduce red tape?

The Native Vegetation Regulation 2013 commenced on 23 September 2013 repealing the Native Vegetation Regulation 2005 and amending the Native Vegetation Act 2003. The new Regulation has been described by the  Office of Environment and Heritage (OEH) as the first step in the ‘staged implementation of a commensense approach to the management of native vegetation in NSW’, however councils may justifiably be concerned that the changes will complicate efforts to clear native vegetation without the need for approval under the Act.

Together the Act and Regulation prescribe the instances where approval is required to clear native vegetation on land. Section 12(1) of the Act prohibits the clearing of native vegetation except in accordance with a development consent granted in accordance with the Act, or in accordance with a property vegetation plan (PVP).

A person who clears or authorises the clearing of native vegetation contrary to s12 of the Act commits an offence. However,  section 12(3) of the Act provides ‘[it] is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4 ‘.

Amongst other provisions, Part 4 of the Act includes:

  • Division 2 which permits the clearing of certain native vegetation without the approval required by section 12;
  • Division 3  which operates to exempt certain clearing activities from the definition of clearing native vegetation, thereby avoiding the need for approval under s12; and
  • Division 4 which excludes certain clearing activities from the operation of the Act entirely.

Included in the list of exempted activities under Division 3, are ‘routine agriculture management activities‘ (RAMAs).

Section 11 of the Act defines the activities that are RAMAs. Section 11(2) of the Act provides that ‘[the] regulations may make provision for or with respect to extending, limiting or varying the activities that are routine agricultural management activities, and subsection (1) [which lists the activities] is to be construed accordingly‘.

One of the more significant amendments for councils worked by the new Regulation is the changes to the scope of the council infrastructure works that constitute RAMA. Under the old regulation, cl18A provided that ‘the activities that comprise routine agricultural management activities for the purposes of section 11 of the Act are extended to include the construction, operation or maintenance of any of the following (referred to in this clause as infrastructure works) by a council:

(a) sewerage treatment works,
(b) waste disposal landfill operations,
(c) waste management facilities,
(d) water supply works,
(e) gravel pits,
(f) cemeteries,
(g) outdoor playgrounds, playing fields, netball courts, tennis courts, volleyball courts,  basketball courts, swimming pools, skateboard ramps or similar outdoor recreation areas or facilities, that are normally open to the public, including any buildings that are ancillary to any such area or facility’.

Under the new Regulation only ‘gravel pits’ and ‘cemeteries’ remain within the council infrastructure works RAMA (now at cl34). The justification for the removal of the other infrastructure works was that ‘most of the previous works identified as council infrastructure RAMAs under the Native Vegetation Regulation 2005 … were otherwise exempted under the Act‘ (see page 3 of the ‘Snapshot of changes to the Regulation’ published by the NSW Government and available through the OEH here).

The Government’s justification is somewhat cryptic, the inference being that not all of the infrastructure works omitted from the revised council infrastructure works RAMA are otherwise exempt by virtue of Part 3, Division 4 of the Act.

The $1.1 million dollar question is which of those omitted activities are not otherwise exempt or excluded under the Act, with the consequence that clearing for those activities will now require development consent or PVP in order to avoid a breach of s12 of the Act?

It’s apparent that much of the work performed by the former council infrastructure works RAMA has now been shifted to s25 of the Native Vegetation Act contained within Division 4 of Part 3. Section 25(f) of operates to exclude from the application of the Native Vegetation Act, any clearing that is, or that is part of, ‘designated development‘ within the meaning of the EPA Act and for which development consent has been granted under that Act.

Sewerage treatment works, waste disposal landfill operations and waste management facilities are likely to be excluded by s25(f), by virtue of coming within the list of designated development contained in Schedule 3 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). However, to be exempt an assessment will need to be made of whether the particular activity falls within the description in Schedule 3 of the EPA Regulation.

Water supply works might also be excluded from the operation of the Native Vegetation Act by virtue of s25(s) which excludes any clearing carried out in accordance with a licence, permit, authority or approval under the Water Act 1912 or the Water Management Act 2000.

It is less obvious whether clearing for outdoor playgrounds, playing fields or any of the other infrastructure works contained within the now repealed cl18A(g) of the Native Vegetation Regulation will be covered by some other exclusion or exemption. If the works do not require development consent, and are assessed under Part 5 of the EPA Act, then they will be exempt. However, again, this will require detailed analysis of planning controls to determine whether or not the works must be subject to Part 5 assessment.

Whilst ultimately, in the majority of cases the types of council RAMAs which are exempt under the Native Vegetation Act  may not change, councils will need to give consideration to which RAMAs are exempt based on the provisions of the EPA Act, rather than simply relying on the clear list of exemptions which previously applied.