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Native vegetation clearing in NSW: a regulatory history

Native vegetation clearing in NSW: a regulatory history

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 05/2014 by Alec Bombell and Daniel Montoya

This paper outlines the ways in which the clearing of native vegetation has been regulated in NSW, from 1788 to the present. Since the 1980s the extent to which governments can regulate the clearing of native vegetation on private land has been the subject of continued debate. This debate is now playing out before the Independent Biodiversity Legislation Review Panel, established by the NSW Office of Environment and Heritage (OEH) to review biodiversity legislation in NSW, including the Native Vegetation Act 2003.

Note that the focus of this paper is chiefly on the regulation of native vegetation clearing in rural areas, as currently regulated under the Native Vegetation Act 2003. The regulation of tree clearing in non-rural local government areas under the Environmental Planning and Assessment Act 1979 (EP&A Act 1979) and the Trees (Disputes Between Neighbours) Act 2006 is beyond the ambit of this paper. Also not considered are the regimes established at the Commonwealth and State level for protected species of native vegetation, and harvesting in native State forests.

“Native vegetation” typically encompasses all vegetation present in NSW prior to European settlement. Since settlement, a significant proportion of vegetation present has been cleared for urban areas, infrastructure, industry and agriculture. [1]

Native vegetation provides many benefits, including controlling erosion and salinity, maintaining water quality, providing habitat, economic benefits to landholders, and acting as carbon sinks absorbing greenhouse gases. Conversely​, broadscale clearing of native vegetation contributes to a decrease in native species, land degradation, increased salinity, and the disruption of many ecosystems. Throughout the 1980s, political and public awareness of these issues increased significantly, and action began to be taken at both State and Federal levels to arrest the clearing of native vegetation. [1]

The clearing of native vegetation in NSW has been regulated, to varying degrees, since 1881. The timeline below lists the significant regulatory developments with respect to native vegetation. Note that the timeline does not identify when provisions were repealed, where that applies.

Date Act Regulatory reform
1881 Ringbarking on Crown Lands Regulation Act 1881Prohibited ringbarking or otherwise destroying a tree on Crown land without a permit
1884 Crown Lands Act of 1884Prohibited ringbarking or otherwise destroying a tree on Crown land without a permit
1916 Forestry Act 1916Prohibited ringbarking or otherwise destroying a tree on Crown land without a permit
1935Western Lands Regulations 1935Destruction of timber or scrub could be prohibited on Special leases in the Western Division
1938 Soil Conservation Act 1938Indirectly prohibited clearing on private and public land in notified catchment areas
1938 Soil Conservation Act 1938Provision made for regulations prohibiting destruction of timber and scrub on all Crown land
1946 Irrigation and Water (Amendment) Act 1946Prohibited the destruction of trees in or alongside any prescribed river or lake without a permit; applied to private and public land
1950 Hunter Valley Conservation Trust Act 1950Prohibited destruction of trees, shrubs and scrub on declared lands in the Hunter Valley without a permit; declared lands could include private and public land
1955 Irrigation, Water and Rivers and Foreshores Improvement (Amendment) Act 1955Indirectly prohibited native vegetation clearing on protected land, namely private and public land in and adjacent to rivers
1972 Forestry, Soil Conservation and Other Acts (Amendment) Act 1972Prohibited destruction of trees on protected land without a permit; protected land could include private and public land
1972 Forestry, Conservation Authority of New South Wales and Other Acts (Amendment) Act 1972Prohibited ringbarking or otherwise destroying a tree on Crown land without a clearing licence
1973Western Lands Regulations 1935Preservation of native vegetation in certain areas could be required of Special leases in the Western Division
1977 Heritage Act 1977Prohibited destruction of or damage to trees in a place under a conservation order without an approval
1979 Environmental Planning and Assessment Act 1979Environmental Planning Instruments could be made to protect trees and vegetation
1979 Environmental Planning and Assessment Act 1979Local Environmental Plans could provide for Tree Preservation Orders prohibiting the destruction of any tree or trees without a permit
1979 Coastal Protection Act 1979Prohibited native vegetation clearing in the coastal zone without an approval
1985 Western Lands (Amendment) Act 1985Conditions could be attached to leases in the Western Division requiring preservation of trees, scrub and vegetative cover
1985 Western Lands (Amendment) Act 1985Prohibited destruction of trees on leasehold land in the Western Division without a clearing licence
1985 State Environmental Planning Policy No. 14 – Coastal WetlandsProhibited land clearing in coastal wetlands without development consent
1986 Soil Conservation (Further Amendment) Act 1986Prohibited destruction of trees, shrubs and scrub on protected land without a permit; expanded definition of protected land to include environmentally sensitive land
1988 State Environmental Planning Policy No. 26 – Littoral RainforestsProhibited land clearing in or adjacent to littoral rainforests without development consent
1995 State Environmental Planning Policy No. 44 – Koala Habitat ProtectionNative vegetation clearing permitted once a plan of management was in place
1995 State Environmental Planning Policy No. 46 – Protection and Management of Native VegetationProhibited clearing of native vegetation on most rural land in the State without development consent.
1998 Native Vegetation Conservation Act 1997Prohibited clearing of native vegetation on most rural land in NSW without development consent.
Introduced regional vegetation management plans, which were to (inter alia) prescribe for each particular region when consent was required, and, if no consent was required, under what conditions clearing was to be carried out.
1998 Native Vegetation Conservation (Savings and Transitional) Regulation 1998Maintained exemptions from the requirement to obtain development consent in place under pre-1998 arrangements.
2005 Native Vegetation Act 2003
Native Vegetation Regulation 2005
Environmental Outcomes Assessment Methodology
Prohibited clearing of native vegetation on most rural land in NSW otherwise than in accordance with a development consent or a property vegetation plan (PVP).
Clearing would only be approved in a consent or a PVP where the clearing “maintained or improved environmental outcomes”. This was determined in accordance with the Environmental Outcomes Assessment Methodology.
The Act and the Regulation provided several categories of clearing exempt from the need for approval.
2014 Native Vegetation Regulation 2013Expanded the categories of clearing exempt from the need for approval.
Provided for the making of draft self-assessable clearing codes of practice. Clearing undertaken in accordance with the codes requires no consent.
2014Draft Self-assessable Clearing Codes of PracticeThree draft self-assessable clearing codes exhibited. The codes related to clearing invasive native scrub, clearing isolated paddock trees and thinning native vegetation.
Native vegetation clearing on public land was first regulated by the Ringbarking on Crown Lands Regulation Act 1881. The Soil Conservation Act 1938 introduced native vegetation clearing controls on private land, albeit at first only in an indirect manner. This Act prohibited activities within a catchment area that might damage or interfere with the utility of a proclaimed work, namely a dam. It therefore indirectly regulated native vegetation clearing on private land that was part of a catchment area notified under the Act, to the extent that clearing may have caused soil erosion. [2]

Further regulatory controls were progressively introduced in a number of different statutes with regard to particular areas of the State. Most of these controls were enacted in the 1970s and 1980s. A Table on page 31 sets out the native vegetation clearing regulatory framework as it was at the beginning of 1995. [2]

Against the background of increasing awareness of environmental issues in the 1980s, the Carr Government embarked upon a process to reform native vegetation regulation in NSW. The first step was the introduction in 1995 of the first instrument to specifically regulate native vegetation clearing, State Environmental Planning Policy No. 46 – Protection and Management of Native Vegetation (SEPP 46). SEPP 46 was introduced as an interim measure whilst the Government formulated the Native Vegetation Conservation Act 1997, which commenced on 1 January 1998. [3]

With the Native Vegetation Conservation Act 1997 (NVC Act 1997), for the first time the clearing of native vegetation was brought under one legislative framework. Clearing of native vegetation was prohibited otherwise than in accordance with a development consent or a regional vegetation management plan. Regional vegetation management plans were to be developed by region-specific regional vegetation committees, and were to stipulate when and under what conditions vegetation could be cleared without development consent. Two regional vegetation management plans were gazetted, but many others were never finalised. [3]

Whilst available data suggests a decline in land clearing from 1998 onwards, the NVC Act 1997 proved highly unpopular with landholder interest groups. Furthermore, the Auditor-General in a 2002 Audit Reportidentified significant issues with the administration of the legislation by the NSW Department of Land and Water Conservation (DLWC). [3]

Also in 2002, the Wentworth Group of Concerned Scientists published the Blueprint for a Living Continent, which advocated an immediate end to broadscale land clearing of remnant native vegetation and the provision of adjustment assistance to rural communities. In a further document provided to the Premier in 2003, the Wentworth Model for Landscape Conservation, the Wentworth Group provided the Government with the basis to reform the regulatory framework for native vegetation management in NSW. The Carr Government established the Native Vegetation Reform Implementation Group in 2003, whose recommendations contributed to the formation of the Native Vegetation Act 2003. [4]

The Native Vegetation Act 2003 (NV Act 2003) became operational in December 2005, when the accompanying Native Vegetation Regulation 2005 (NV Regulation 2005) and Environmental Outcomes Assessment Methodology (EOAM) were finalised. The legislation introduced a new framework, whereby broadscale clearing of native vegetation would only be permitted (under a development consent or under a longer term, property specific “property vegetation plan” (PVP)) where the proposed clearing improved or maintained environmental outcomes. Several exemptions to the requirement to obtain approval were also specified, including certain “routine agricultural management activities” (RAMAs) designed to provide landholders with flexibility to clear vegetation as part of ongoing farm management. In 2006, the Auditor-General published a follow-up report on native vegetation regulation, finding that in many respects the new legislation was an improvement upon the NVC Act 1997. [4]

Since 2005, several amendments have been made to the framework and instruments in place under the NV Act 2003. A table summarising these amendments is provided in Appendix A. Many of these were targeted at streamlining the approval process, in response to frustrations voiced by landholder interest groups. A 2009 review of the NV Act 2003 by the Minister for Climate Change and the Environment found that the objects of the NV Act 2003 remained valid and that no fundamental changes were necessary. In 2011, Robyn Parker MP, Minister for the Environment and Heritage, announced a review of the NV Regulation 2005 to reduce red-tape, improve service delivery, remove ambiguity, and maintain the environmental standard set by the NV Act 2003. [5]

The outcome of the review, the new Native Vegetation Regulation 2013, saw an increase in the categories of activities where approvals were not required, changes to key definitions, and paved the way for self-assessable clearing codes to provide further flexibility to landholders. Environmental interest groups expressed grave concern about expanding the range of exempt and self-assessable clearing without concurrent increased monitoring, arguing that the NV Act 2003’s objectives may no longer be met. Landholder groups, whilst supportive of the changes, maintained their view that broader changes to the legislation were required. [5.5]

More recently, in March 2014 the OEH published draft self-assessable clearing codes of conduct for clearing invasive native species, clearing isolated paddock trees and for thinning native vegetation. These three draft codes prompted criticism from both landholders, who saw them as too technical and unworkable, and environmental groups, who criticised the lack of oversight and monitoring. [6.2]

In May 2014, the Shooters and Fishers Party introduced the ​ Native Vegetation Amendment Bill 2014 into the Legislative Council. Amongst other things, the Bill seeks to amend the NV Act 2003 to introduce economic and social factors into the equation applied to determine whether clearing can be approved – a triple bottom line approach – to replace the existing “improve or maintain environmental outcomes” test. Debate on the Bill has currently been adjourned. [6.3]

Finally, the Independent Biodiversity Legislation Review Panel is due to provide its interim report in mid-October 2014. The Panel, which has been engaged in stakeholder consultation since August, has been created to evaluate the current biodiversity legislative framework (including the NV Act 2003), the evidence base for government intervention (including the status, trends and pressures on native vegetation, biodiversity and ecological processes), and will propose new legislative arrangements for biodiversity conservation in NSW. Dr Neil Byron, a member of the independent panel conducting the review, has indicated that an outcome may include recommendations that the broader community should pay for the benefits obtained by farmers setting aside productive land. [6.5]

Native vegetation has also been a feature of environmental policy at the Federal level. In 2010 the Commonwealth Senate referred to the Finance and Public Administration References Committee for inquiry and report on the impact of native vegetation laws on landholders. The committee considered the native vegetation management legislative regimes of all the States. In its report, the committee expressed concern about the costs of native vegetation regulations born by landholders, and recommended a national review be initiated through the Commonwealth Natural Resources Management Ministerial Council. [7]

In 2012, the COAG Standing Council on Environment and Water published Australia’s Native Vegetation Framework, a national framework to guide the ecologically sustainable management of Australia’s native vegetation. The Framework sets national directions to guide actions across government strategies, policies, legislation and programs related to native vegetation management on the Australian continent and its islands. [7]

There are a number of themes recurring frequently throughout the debate, which will need to be carefully managed by the current Panel in its review and recommendations. These include the extent to which environmental factors are balanced with economic and social factors, how to provide flexibility through exemptions whilst maintaining the overall objective of protecting native vegetation, how to manage and maintain positive and cooperative relationships between landholders and regulators, the need to improve information on and monitoring of native vegetation, and how the costs of public benefits obtained by retaining and protecting native vegetation should be shared between the community and landholders. [8]