Posted on May 23, 2016 by Sue Puckeridge
Proposed reforms for land management and biodiversity conservation in NSW
On 3 May 2016, the government announced a consultation package for a new system of land management and conservation of native plant and animal species in the State. The package is ‘designed to create a new system that improves both environmental outcomes and the productivity of farmers‘ (3 May 2016, Government Media Release). This article identifies some of the material reforms.
The reforms implement the recommendations of the 2014 independent panel review of the Native Vegetation Act 2003 (‘NV Act‘), Threatened Species Conservation Act 1995 (‘TSC Act‘) and Nature Conservation Trust Act 2001 (‘NCT Act‘).
The reforms are significant and wide-ranging, and if passed will result in the repeal of the NV Act, TSC Act, NCT Act, the biodiversity parts of the National Parks and Wildlife Act 1974 and the seven part test under the Environmental Planning and Assessment Act 1979 (‘EPA Act‘).
The Local Land Services Act will be amended by the Local Land Services Amendment Act 2013 (‘LLSA Bill‘). This statute, together with a new Biodiversity Conservation Bill 2016 (‘BC Bill‘), will primarily govern land management and conservation in NSW.
Key Aims of the Reform Proposal
The key aims of the reform proposal are stated by the Government to be:
- establishing a single set of rules for land clearing and simplifying the task of farmers managing their land,
- protecting biodiversity at a bioregional level and state scale,
- improving biodiversity assessment in the early planning stages,
- improving agricultural productivity, and
- providing incentives to landowners to conserve biodiversity.
These aims are to be achieved through a suite of reforms, including:
- introducing a system of self regulation for clearing of agricultural land creating increased flexibility for farmers,
- expanding the system for biodiversity offsetting and certification,
- introducing a tiered system of private landowner agreements aimed at encouraging biodiversity conversation,
- introducing a risk-based assessment system for activities which impact upon native plants and animals,
- implementing a conservation program for threatened plants and animals (with a commitment to provide an additional $100 million in funding over 5 years),
- creating a new trust to invest in private land conservation and manage private land conservation agreements, and
- expanding the definition of ‘ecologically sustainable development’ to require the effective integration of social, as well economic and environmental, considerations in decision making.
Self Regulation of Land Clearing
Under the LLSA Bill, native vegetation maps (to be prepared by the Office of Environment and Heritage (OEH)) will divide land in NSW into “exempt land”, “regulated land” and “excluded land”. Landowners will be able to self-assess what category their land falls within and whether or not approval is required for clearing activities.
This is a significant change from the existing regime where native vegetation across the State can only be cleared in accordance with a consent or a property vegetation plan.
Category 1 – exempt land: Clearing of native vegetation on exempt land will be allowed to occur without approval. This land will generally be cleared land, low conservation value grasslands or land identified as regrowth in a property vegetation plan. Other legislative restrictions will continue to apply, such as any requirements under other NSW laws or the Commonwealth Environment Protection and Biodiversity Conservation Act 1999.
Category 2 – regulated land: This is generally land which has not been cleared of vegetation as at 1 January 1990 (or has subsequently been illegally cleared) and in the opinion of OEH has conservation value (as prescribed in the LLSA Bill). Regulated land also includes category 2-vulnerable regulated land (including riparian land, steep or highly erodible land) which will be subject to additional restrictions.
Clearing of category 2 land can occur if the clearing is:
- an “allowable activity” as specified in the LLSA Bill (for example, it is necessary to remove an imminent risk of personal injury or to obtain timber to be used in the construction or operation of rural infrastructure), or
- in accordance with a “land management code”, which are designed to facilitate clearing to support more efficient farming methods and systems, while balancing environmental risks.
The land management codes may specify where and when clearing may or may not take place, the type of vegetation that may be cleared, the giving of notice to the local Land Services before of after clearing and the issue of voluntary or mandatory clearing of native vegetation certificates.
If the clearing activity proposed on Category 2 land is not covered by an allowable activity or a code, approval is required from the Local Land Services.
Category 3 – excluded land – this includes land not categorised in the Maps and to which the LLS Act does not apply. This will essentially be the Sydney metropolitan area, land in urban zones, Environment Protection Zones E2, E3 and E4 and Large Lot Residential R5 zones under local environmental plans. Clearing on excluded land will continue to be regulated by the EPA Act and the BC Bill.
Urban areas will also be subject to a new State Environmental Planning Policy (Protection of Trees in Urban Areas) 2016 (‘SEPP‘) and a new model development control plan, which will replace the Standard Instrument LEP provisions relating to tree removal permits in urban council areas and in urban zones. Once the proposed SEPP is in force, non-declared species of trees or other vegetation in urban areas will be able to be cut down without development consent. The SEPP is intended to also apply to the clearing of non-native vegetation in non-urban areas.
Expanding the Biodiversity Offset System
Currently, there are a number of different assessment methods to assess biodiversity impacts of land management activities and land use change in NSW depending on the type of the development and governing legislation.
Under the BC Bill, a new biodiversity assessment method will be introduced aimed at simplifying biodiversity assessment for all development, and providing greater certainty and transparency for stakeholders.
Landowners, not only planning authorities, will be able to apply for biodiversity certification which allows areas of high conservation value to be identified, avoided and protected while identifying areas suitable for clearing and development.
Landowners and developers will also be allowed to offset clearing of regulated land by dedicating conservation land, or by making a contribution to a new Biodiversity Conservation Fund. This is designed to make it easier for developers to meet their offset obligations.
All biodiversity certification proposals will be able to use biodiversity credits or pay into the Biodiversity Conservation Fund to satisfy offset requirements.
Private Landowner Conservation Agreements
The new system will consolidate the seven different types of private land conservation mechanisms into a tiered-system consisting of three forms of landowner conservation agreements. Each tier will have different management requirements and funding allocation to the landowner. Existing landowner agreements will continue to apply.
- Tier 1 – “Biodiversity Stewardship Agreements” between landowners and the Minister which are intended to provide for permanent protection of biodiversity and provide the landowner with upfront funding. They will enable a landowner to create and sell biodiversity credits as part of the NSW Biodiversity Offsets Scheme,
- Tier 2 – “Conservation Agreements” which are intended to be used for land which has high conservation value and will be aimed at the conservation or study of the biodiversity values of the land. They may be permanent or limited in time and supported by payments to landholders reflecting the level of management actions required, and
- Tier 3 – “Wildlife Refuge Agreements” which will be similar in scope to wildlife refuges under the NPW Act. They are intended to support simple and effective land management and may be terminated at any time or converted into higher forms of agreements. They may also be be eligible for grants.
These changes are intended to remove government red-tape and improve incentives for landowners to enter into long-term private land conservation.
A New Risk-Based Assessment System for Native Animal and Plant Impacts
Under the TS Act and NPW Act, it is an offence for a person to take, trade, keep, move, kill or harm protected or threatened animal or plants and habitat, without a licence.
The new regime proposed under the BC Bill will still make it an offence to harm animals, pick plants, possess or deal in plants or animals, and damage habitat of a threatened or ecological community. However, it will introduce defences which will allow people to conduct certain unregulated and regulated activities, which are determined by the level of risk the activity poses to wildlife populations, animal welfare and human safety.
These activities are:
- exempt activities that do not require a licence, such as keeping a limited number of low-risk native animals as pets,
- activities authorised by a code of practice that do not require a licence, such as keeping a limited number of animals as pets, but must be done in accordance with relevant codes of practice relating to animal welfare and basic compliance, and
- activities that require a Biodiversity Conservation Licence which are high-risk activities such as large scale commercial wildlife breeding or native wildlife harvesting operations.
These changes will significantly reduce the level of oversight that the OEH has over “low-risk” activities and reduce the number of small-scale licences it issues. The aim is to allow OEH to focus enforcement resources on higher-risk activities.
The BC Bill also allows for a conservation program to maximise the long-term security of threatened species and threatened ecological communities. This is to be delivered through the existing Saving our Species program, with the Government committing an additional $5 million over 5 years to the program.
Expansion of ‘ecologically sustainable development’
The BC Bill amends the definition of ‘ecologically sustainable development’ under s6(2) of the Protection of Environment Administration Act 1991 (and consequently the Protection of Environment Operations Act 1997) to require the effective integration of social, as well economic and environmental, considerations in decision making.
This amendment is designed to bring NSW law in line with other Australian jurisdictions and international best practice on sustainable development.
Biodiversity Conservation Trust
The Nature Conservation Trust will be replaced with the Biodiversity Conservation Trust (‘BC Trust‘) which will have an enhanced role including investing in private land conservation, identifying biodiversity credits, negotiating, entering and managing conservation agreements with private landowners and the management of the Biodiversity Conservation Fund.
The Draft Local Land Services Amendment Bill and the Draft Biodiversity Conservation Bill are on public exhibition and open for submissions until 5pm on 28 June 2016. Details can be found at www.landmanagment.nsw.gov.au.
This article was prepared with the assistance of Amanda Berry and Anna Sinclair.