These Fact Sheets are a guide only and are no substitute for legal advice. To request free initial legal advice on an environmental or planning law issue, please call our FREE Environmental Law Advice Line. Your request will be allocated to one of our solicitors who will call you back, usually within a couple of days.

The information in this fact sheet is currently being updated and may be out of date.

Print this factsheet

6.1 Threatened species and ecological communities

6.1.1  Overview

According to the International Union for Conservation of Nature and Natural Resources Red List of Threatened Species, Australia now has the highest rate of species extinction of any developed nation. Almost one in five mammal species are facing extinction and there are over 800 plants and animals which are listed as threatened.

NSW and the Commonwealth both have laws protecting threatened species.

6.1.1.1 NSW threatened species laws

In NSW, threatened species are protected under the following three Acts which operate in conjunction with each other:

• The Threatened Species Conservation Act 1995 deals with the listing of species, the declaration of critical habitat, recovery plans, threat abatement plans, licencing, biodiversity certification and biobanking;
• The National Parks and Wildlife Act 1974 contains additional licencing provisions, and provisions for criminal offences; and
• The Environmental Planning and Assessment Act 1979 imposes obligations on developers and consent authorities to assess and consider the impacts of proposed development on threatened species during the development assessment process (e.g. by requiring a species impact statement in some circumstances).

Threatened fish (both saltwater and freshwater) and their habitat, and threatened marine vegetation, are protected under the Fisheries Management Act 1994.

There are many native species of flora (plants) and fauna (animals) which, although not threatened, still have some degree of legal protection. These are protected under the National Parks and Wildlife Act 1974. For more information, see Fact sheet 6.2 on Protecting native animals and plants.

Habitat loss through land clearing and development is one of the key threatening processes leading to loss of biodiversity in NSW. Land clearing in general is regulated under the Native Vegetation Act 2003 (see Fact sheet 5.3).

6.1.1.2 Which government department is responsible?

The Department of Environment, Climate Change and Water, is responsible for protecting threatened species in NSW. DECCW administers both the Threatened Species Conservation Act and the National Parks and Wildlife Act. If you are concerned about an alleged breach of the NSW threatened species legislation, you can report the incident to DECCW by phoning 131 555 or by email to info@environment.nsw.gov.au. You should receive an incident report number and DECCW should follow the matter up.

The Environment Minister is responsible for both of these Acts. Although the Planning Minister administers the Environmental Planning and Assessment Act, the Environment Minister has an important concurrence rolefor all developments which are likely to significantly affect threatened species.

6.1.1.3 Commonwealth threatened species law

Species and ecological communities which are threatened on a national level are protected under the Commonwealth Environment Protection and Biodiversity Conservation Act (EPBC Act).

The EPBC Act protects:

• Fauna and flora on land controlled or owned by the Commonwealth, 1
• Fauna and flora that may be harmed by the activities of the Commonwealth or a Commonwealth agency, 2 and
• Nationally listed threatened species or communities which might be significantly impacted by an activity or development. 3

If you are concerned about an alleged breach of the Commonwealth threatened species legislation, you can report the incident to the Commonwealth Environment Department by calling the Compliance and Enforcement Branch on 1800 110 395 or by email to compliance@environment.gov.au.

This Fact sheet does not deal with Commonwealth threatened species legislation. See instead Fact sheet 3.3 on Commonwealth threatened species law.

6.1.1.4 Useful web links

• NSW Department of Environment, Climate Change and Water - nature conservation
• Nature Conservation Council
• World Wide Fund for Nature

6.1.1.5 Useful legal texts

• Environmental & Planning Law in New South Wales , by Lyster, Lipman, Franklin, Wiffen and Pearson, The Federation Press (2007), Chapter 8 Conserving Biodiversity, pp 318 - 339.
• The Environmental Law Handbook, Farrier and Stein, eds, 4 th ed, Redfern Legal Centre Publishing, (2006), Chapter 11, Biodiversity conservation, pp 420 - 432.

6.1.2 Listing threatened species

The Threatened Species Conservation Act 1995 is the main legislation protecting threatened species in NSW. The Act and the Threatened Species Conservation Regulation 2002 contain a comprehensive framework for listing threatened species.

6.1.2.1 Eligibility for listing

In NSW the following may be listed under the Threatened Species Conservation Act :

• Individual species,
• Populations, and
• Ecological communities.

They may be listed once they reach a particular level of endangerment (e.g. vulnerable, endangered, critically endangered). The listings are collectively known as "threatened species, populations and ecological communities" and are often simply referred to as "threatened species".

6.1.2.1.1 Individual species

Individual species may be listed as:

• Presumed extinct
• not recorded in its known or expected habitat within its lifecycle 5
• Critically endangered
• facing an extremely high risk of extinction in NSW in the immediate future 6
• Endangered
• facing a very high risk of extinction in the near future 7
• Vulnerable
• facing a high risk of extinction in the medium-term future 8

6.1.2.1.2 Populations

Individual populations, or pockets, of species may be listed as an "endangered population". 9

A population is eligible to be listed if it is facing a very high risk of extinction in New South Wales in the near future. 10 The population cannot be listed if the species is already listed as endangered, critically endangered or presumed extinct. 11Note: individual populations cannot be listed under the EPBC Act.

Examples of endangered populations include: 12

• the Emu population in the NSW North Coast bioregion and the Port Stephens area,
• the Gang-gang Cockatoo population in the Hornsby and Ku-ring-gai areas,
• the Little Penguin in the Manly Point Area,
• the Long-nosed Bandicoot at North Head,
• Koalas at Hawks Nest and Tea Gardens, and
• Koalas at Pittwater Local Government Area.

6.1.2.1.3 Ecological communities

Ecological communities may be listed as:

• Critically endangered ecological community
• Facing an extremely high risk of extinction in the immediate future 13
• Endangered ecological community
• Facing a very high risk of extinction in the near future, 14 or
• Vulnerable ecological community
• Facing a high risk of extinction in the medium-term. 15

6.1.2.2 Procedure for listing

6.1.2.2.1 Who may initiate action for listing?

Any person may nominate a species, population or ecological community for listing or omission under the TSC Act. 16The nomination must follow the process set out in the Act. 17 The Scientific Committee may also list a species, population or ecological community on its own initiative.

If you wish to nominate a species, you will need detailed evidence to support your nomination. There are some conservation groups who are experienced in preparing nominations for threatened species. If you think a particular species, population or ecological community should be listed, and you want help, you could contact:

• Humane Society International
  • Website: www.hsi.org.au
  • Phone: (02) 9973 1728 or Toll free 1800 333 737
• Nature Conservation Council NSW
  • Website: www.nccnsw.org.au
  • Phone: (02) 9279 2466

6.1.2.2.2 Scientific Committee

The Scientific Committee, established under the Threatened Species Conservation Act , is responsible for determining whether a particular species, population or ecological community is to be included on or omitted from the list of threatened species. 18

The process is as follows: 19

• After the Committee has considered a proposal, it must make a preliminary determination as to whether or not the proposal should be supported,
• In a case involving a nomination, the Committee must then make a final determination within 6 months of calling for submissions on its preliminary determination,
• Before making a final determination, the Scientific Committee must refer the proposed nomination to the Environment Minister. The Environment Minister may only refer the proposed determination back to the Committee for further consideration on scientific grounds.

Final determinations are published in the NSW Government Gazette. The validity of a final determination may only be challenged in the Land and Environment Court within 6 months of the determination appearing in the Gazette. 20

6.1.2.2.3 Emergency listings

The Scientific Committee may list a species on an emergency basis by giving it a provisional listing 21.

A species may be provisionally listed as endangered or critically endangered if, although not previously known to have existed in New South Wales , it is believed on current knowledge to be indigenous to New South Wales , or if it was presumed extinct but has been rediscovered. 22Anyone may nominate a species to be listed provisionally. 23

What are the implications of listing?

Once a species, population or ecological community has been listed, it may trigger the following actions:

• the Director-General may prepare a recovery plan for it (see para. 6.1.3.1 below);
• the NPWS must identify critical habitat if the species, population or ecological community is endangered or critically endangered, which may then be declared as such by the Environment Minister (see para 6.1.2.2.4 below);
• A person who harms (animals) or picks (plants) the threatened species will commit an offence unless they have a licence or other form or authorisation (see para 6.1.4 below);
• Developments which are likely to significantly affect the threatened species or its habitat will require a species impact statement (see para 6.1.5.2 below).

6.1.2.2.4 Critical habitat

Once a species, population or ecological community is listed as endangered or critically endangered, the NPWS must take steps to identify the habitat that is critical to its survival.

The Environment Minister is responsible for declaring critical habitat, on advice from the Director-General. 24 A declaration of critical habitat and a map showing its location must be published in the NSW Government Gazette and copies given to all affected landholders, public authorities and mortgagees. 25

The Director-General must keep a public register of all critical habitat. 26

If an area of land is declared as critical habitat, it means that:

• The Environment Minister may not confer biodiversity certification over those areas of land in an LEP or SEPP;
• Planning authorities (such as local councils) must have regard to the register of critical habitat when deciding whether to grant development consent; 27
• Public authorities must consider the habitat when using land that it owns or controls; 28
• An application for a licence to carry out an activity on the land must be accompanied by a species impact statement; 29 and
• A development application relating to that land must be accompanied by a species impact statement. 30

Critical habitat declarations are recorded on DECCW's critical habitat register.

6.1.2.3 Threatened fish and marine vegetation

In NSW, the protection of marine species is dealt with outside the general threatened species laws. Threatened species of fresh and saltwater fish and marine vegetation are protected under the Fisheries Management Act 1994.

The protection of threatened marine species and marine vegetation is shared between the Industry and Investment NSW and DECCW. The Minister for Primary Industries is responsible for administering most parts of the Fisheries Management Act 1994.

6.1.2.3.1 How are fish listed as threatened?

The Fisheries Scientific Committee, established under the Fisheries Management Act 1994, is responsible for determining which fish species, populations, ecological communities or threatening processes should be added to the list. 31 The Minister then either accepts the nomination or refers it back to the Committee for scientific reasons. 32Any person may nominate a new species for listing. 33The categories of threatened species, populations and ecological communities mirror those under the Threatened Species Conservation Act.

Habitat that is critical to the survival of endangered or critically endangered marine species may be declared as critical habitat. 34The Fisheries Management Act establishes a number of offences, including harming any listed marine species or damaging its habitat. 35

6.1.2.3.2 Threatened fish and development

The provisions of the Environmental Planning and Assessment Act regarding the need for species impact statements apply to the critical habitat of fish or marine vegetation and threatened species, populations and ecological communities of fish and marine vegetation in the same way as they do to ground-dwelling threatened species. 36

Thus, a development application which is likely to significantly affect a threatened species of fish will require a species impact statement to accompany the development application. Instead of requiring the concurrence of the Environment Minister, the concurrence of the Minister for Primary Industries will be required. 37

6.1.2.3.3 Key threatening processes for fish

Processes which threaten the survival of species may be listed under the Threatened Species Conservation Act (see para 3.2 below). 38

Over 30 key threatening processes are listed, most of which relate to land-based activities, although there are two which relate specifically to marine species. These are:

• Death or injury to marine species following capture in shark control programs on ocean beaches, and
• Entanglement in or ingestion of human debris in marine and estuarine environments.

6.1.2.4 Licences

DECCW does not issue licences concerning threatened fish species and marine vegetation. These are issued by Industry and Investment NSW.

6.1.3 Long-term planning tools to protect threatened species

6.1.3.1 Recovery plans

Once a species is listed as threatened, the Director-General may prepare a recovery plan for it, although this is not mandatory. Recovery plans may be prepared for all categories of threatened species, populations and ecological communities, other than those presumed extinct. 40

A recovery plan must identify critical habitat for the threatened species, identify the processes which are threatening the species (eg land clearing, predation by foxes), and state what can be done to ensure the recovery of the species. 41

Ministers and public authorities (local councils) must take any action available to them to implement a recovery plan and must not make decisions that are inconsistent with a recovery plan. 42Public authorities who intend to depart from a recovery plan must notify the Director-General. 43

There are over 80 recovery plans for species listed as "endangered", and about 16 for species listed as "vulnerable".

6.1.3.2 Key threatening processes

Key threatening processes may be listed by the Scientific Committee. 44A process can be listed if it could adversely affect, or cause a species, population or ecological community which is not presently threatened to become threatened. 45Any person may nominate a threatening process for inclusion on the list. 46

Once a key threatening process is listed, it triggers the need for a threat abatement plan. 47

There are over 30 key threatening process listed. These include things such as:

• long wall mining,
• alteration to the natural flows of rivers and wetlands,
• climate change,
• bush rock removal,
• clearing native vegetation,
• loss of hollow-bearing trees, and
• removal of dead wood and dead trees.

6.1.3.3 Threat abatement plans

The listing of a key threatening process triggers the need for the Director-General to prepare a threat abatement plan (although this is not mandatory). 48 The plan should set out how the Director-General proposes to reduce or eliminate the threat, identify the people or public authorities responsible for implementing the plan, and give a proposed timetable. 49

There are presently 3 threat abatement plans in NSW.

Ministers and public authorities must take any action available to them to implement the plan. 50Consent authorities must have regard to threat abatement plans when considering a development application (under Part 4 of the EPA Act), or when a determining authority is considering an approval (under Part 5 of the EPA Act).

6.1.3.4 NSW Threatened Species Priority Action Statement

The Director-General is required to prepare and adopt a Threatened Species Priorities Action Statement (PAS). 51 In accordance with this obligation, a Priorities Action Statement has been developed which outlines strategies to promote the recovery of each threatened species, population and ecological community and manage key threatening processes. 

The PAS identifies which recovery and threat abatement plans DECCW will prepare. The PAS must be reviewed every three years. 52

6.1.4 Licences to harm or pick threatened species

As a general rule, actions that are likely to result in the harming or picking of threatened species must either be licenced, have development consent or have biodiversity certification.

Licences regarding threatened species are issued under the TSC Act. 53It is also possible to obtain a general licence under the National Parks and Wildlife Act 54 to harm or pick threatened species, but such a licence may only be issued in strict circumstances for the welfare of an animal or if there is a threat to life or property. 55

6.1.4.1 Application process

Applications for licences under the TSC Act are made to the Director-General of DECCW, who is responsible for issuing licences. 56 If the activity to be licenced will take place on land that is critical habitat, the application must be accompanied by a species impact statement. 57If a species impact statement is not compulsory, the Director-General may decide that one is necessary if the action is likely to significantly affect threatened species. 58

6.1.4.2 Appeals

An applicant for a licence may appeal to the Land and Environment Court against the refusal, conditions, variation or cancellation of a licence. 59 A person may also appeal against a grant of the licence if the licence was accompanied by a SIS and the person made a written submission while the application was on public exhibition. 60

Appeals must be brought within 28 days. 61The licence cannot be used until the appeal period has expired, or if an appeal has been lodged, until the appeal is finally determined. 62

6.1.4.3 Public register

The Director-General must keep a public register of all licence applications and licences. 63

6.1.5 Threatened species and development

NSW laws do not protect threatened species absolutely. Rather, the laws set up administrative procedures (such as requiring species impact statements) to guide decision-making where threatened species are concerned.

For example, under the Environmental Planning and Assessment Act 1979 (the main legislation controlling development in NSW), a consent authority may grant development consent which will adversely affect threatened species.

There are three ways in which this can happen:

• The development takes place under an environmental planning instrument (eg a local environment plan) which has biodiversity certification;
• The developer carries out a species impact statement which accompanies the development application; or
• The developer participates in the BioBanking Scheme.

Each of these options is exclusive of the other. For example, if a development it is proceeding under the BioBanking Scheme, a species impact statement will not be needed.

6.1.5.1 Biodiversity certification

The TSC Act allows for the biodiversity certification of specified land. 64

There are two types of biodiversity certification:

• Certification of environmental planning instruments (LEPs and SEPPs) (described below) 65, and
• Certification of the Native Vegetation Reform Package (see Fact Sheet 5.3). 66

6.1.5.1.1 Environment Minister confers certification

The purpose of permitting LEPs to be certified is to allow local councils to engage in strategic planning, thus providing greater certainty for development in areas where there are threatened species. This is particularly relevant in urban and coastal areas where there are significant development pressures on threatened species habitat.

Under the biodiversity certification provisions, the Environment Minister may confer biodiversity certification on a LEP or a SEPP if the Minister is satisfied that the EPI "will lead to the overall improvement or maintenance of biodiversity values", such as where a LEP retains and protects areas of habitat for threatened species. 67

Certification may be limited. For example, it may be expressed to only apply to certain threatened species, or to certain types of development. 68Certification cannot be granted over land which is declared as critical habitat. The certification remains in force for 10 years, unless otherwise specified. 69 The Minister must review the certification if an EPI is reviewed or the land is rezoned. 70

The Environment Minister must have regard to certain factors in deciding whether to grant biodiversity certification, including the principles of ecologically sustainable development, and any conservation outcomes (such as an agreement to transfer land to the public parks system). 71

An EPI cannot be biodiversity certified unless it has been publicly exhibited and the Minister has been given all public submissions. 72 DECCW is currently preparing Guidelines for local councils to assist them in preparing LEPs for certification. DECCW keeps a list of EPIs that have received biodiversity certification.

6.1.5.1.2 What is the effect of biodiversity certification?

The effect of biodiversity certification is that developments that fit within the certified area will not need to have a species impact statement. Under the biodiversity certification provisions, any development for which development consent is required (under Part 4 of the EPA Act), or an activity (under Part 5 of the EPA Act), is automatically assumed not to have a significant impact on threatened species, populations or ecological communities, thereby avoiding the need for a species impact statement. 73

However, a licence to kill or harm threatened species may still be required if a development does not need development consent, but will still affect threatened species or their habitat.

6.1.5.1.3 Public notification and register

Within 21 days of granting biodiversity certification to an EPI, the Environment Minister must give notice to the Planning Minister, to the public on the DECCW website, and to each local council affected. 74The Environment Minister must keep a public register recording the granting, extension, suspension or revocation of all biodiversity certifications. 75

6.1.5.2 Species impact statements

Developments which are proposed for land which is critical habitat, or which is likely to significantly affect threatened species, populations or ecological communities, must have a species impact statement (SIS). This provision does not apply if the applicable EPI has biodiversity certification, or if a BioBanking statement has been issued for the development.

The procedure for these types of developments is as follows:

• The developer must submit a SIS with their development application prepared in accordance with the Threatened Species Conservation Act ; 76
• In deciding whether to grant consent, a consent authority must take into account the likely impacts of the development on threatened species and their habitat; 77
• Development consent cannot be granted without the concurrence of the Director-General of DECCW or, if a Minister is the consent authority, unless the Minister has consulted with the Environment Minister. 78

Planning authorities must have regard to the register of critical habitat when deciding whether to grant consent 79 and to recovery plans 80, threat abatement plans and key threatening processes. 81

6.1.5.2.1 7-part test

In deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, the consent authority must take into account the 7-part test set out in the EPA Act. 82These factors include whether a viable local population of the species is likely to be placed at risk of extinction, whether habitat will be removed or modified, and whether habitat is likely to become fragmented or isolated from other areas.

6.1.5.2.2 Concurrence of Environment Minister

In deciding whether or not to grant concurrence, the Director-General (or the Minister) must consider a range of listed factors, including the principles of ecologically sustainable development. 83 The Environment Minister may either grant concurrence subject to conditions, or refuse concurrence. 84 The conditions of concurrence must be included in the development consent. 85

By agreement with the developer, the Director-General may make concurrence conditional on the developer taking certain voluntary conservation actions regarding threatened species, and those conditions become a binding part of the development consent. 86For example, the Director-General may require the developer to dedicate land to be used as a national park or nature reserve, enter into a conservation agreement, restore threatened species habitat, or donate money to protect threatened species. 87

6.1.5.3 BioBanking statements

In 2008, the NSW Government introduced a new scheme to protect threatened species known as the BioBanking Scheme.

6.1.5.3.1 How does the BioBanking Scheme work?

Under the Scheme, an owner of land containing threatened species or habitat for threatened species may have their land approved as a biobank site and can enter into a biobanking agreement with the Environment Minister for which biodiversity credits are issued in return for the landowner agreeing to protect threatened vegetation and threatened species. 88

A developer can apply to the Director-General for a biobanking statement which will state how many biodiversity credits, and what type, the developer must buy (and retire) in order to offset the impacts of their development on threatened species. 89A biobanking statement can be obtained for any development that requires development consent under Part 4 or Part 3A of the EPA Act, and for any Part 5 activity. 90

Participation in the Scheme is voluntary. A developer can choose to obtain a biobanking statement in order to avoid the need to carry out a species impact statement. 91 The conditions of a biobanking statement must be incorporated into the conditions of the development consent. 92 A biobanking statement expires after two years unless it is acted upon. 93The Director-General must keep a public register of all biobanking statements. 94

6.1.5.3.2 BioBanking Assessment Methodology

The Minister has published a very detailed methodology setting out how the likely impacts of a development are to be assessed, and how the credits required to be purchased are to be calculated, and how the offset rules will work.

6.1.5.3.3 More information on BioBanking

For more information on biobanking see:

• Fact Sheet 5.3 on BioBanking,
• Fact Sheet 6.4 on Conserving private land, and
• DECCW website on BioBanking Offences and defences.

6.1.6 Offences

The criminal offences relating to threatened species, endangered populations and endangered ecological communities are set out in the National Parks and Wildlife Act, 95 not the Threatened Species Conservation Act.

Although these offences may be enforced through either civil proceedings, or criminal proceedings, most breaches are prosecuted as criminal matters.

DECCW is responsible for bringing criminal prosecutions. 96

6.1.6.1.1 Threatened species (animals) and their habitat

It is an offence to harm any animal that is a threatened species, or which is part of an endangered population or an endangered ecological community. 97 This includes harm which is caused by any substance (e.g. poison), animal (e.g. dog), firearm, net, trap or hunting device. The maximum penalty for harm to an endangered species, population or ecological community is $220,000 and/or two years imprisonment. For harm to a vulnerable species, it is $55,000 and/or one year imprisonment.

In many cases, however, it is the habitat rather than the individual animal itself which is harmed or damaged. It is therefore also an offence to damage the habitat of a threatened species, endangered population or endangered ecological community if the person knows that the land concerned is habitat of that kind. 98The maximum penalty is $110,000, and/or one year imprisonment.

It is also an offence to damage critical habitat. The maximum penalty is $220,000 or two years imprisonment, or both. 99If a map showing where the critical habitat is has been published in the Gazette, then the prosecution does not need to prove that the person knew it was declared critical habitat (they are assumed to have known). 100

It is an offence to buy, sell or have in one's possession (e.g. in a vehicle, house, apartment or field) any animal that is listed as a threatened species or which is part of an endangered population. The maximum penalty for an endangered species is $220,000 and/or two years imprisonment. For a vulnerable species, it is $55,000 and/or one year imprisonment. 101

6.1.6.1.2 Threatened plants

It is an offence to pick any plant that is listed as a threatened species, or that is part of an endangered population or endangered ecological community. 102The maximum penalty for an endangered species, population or ecological community is $220,000 and/or two years imprisonment. For vulnerable species, it is $55,000 and/or one year imprisonment.

"Pick" includes gathering, cutting, poisoning, digging up or injuring the plant or any part of the plant. 103For example, slashing a paddock which contains threatened plants would constitute "picking".

It is an offence to buy, sell or have in one's possession (eg in a vehicle, house, apartment or field) any plant that is listed as a threatened species. The maximum penalty for an endangered species is $220,000 and/or two years imprisonment. For vulnerable species it is $55,000 and/or one year imprisonment. 104This provision does not apply to a landowner or lessee if the plant is naturally occurring on their land. 105

6.1.6.2 Defences

Protection of threatened species under is not absolute. There are a broad range of defences that a person can call on if they are charged with an offence regarding threatened species. In short, if the offending activity was in some way authorised (eg by a licence or development consent), then an offence will not have been committed.

The specific defences which are available differ for each offence, and all of the defences are not covered in this Fact Sheet. However, some of the more typical defences are described below.

6.1.6.2.1 Licences to harm, kill, etc

It is a defence to a prosecution for an offence if the person had a licence to harm or pick the threatened species and they were complying with that licence. 106

6.1.6.2.2 Lawful development

It is a defence if the work which harmed the threatened species was essential for the carrying out of: 107

• development under a development consent issued under Part 4 of the Environmental Planning and Assessment Act,
• an activity by a determining authority under Part 5 of the Environmental Planning and Assessment Act, or
• a project approved under Part 3A of the Environmental Planning and Assessment Act.

To have the benefit of this defence, the work must have been carried out in accordance with the relevant approval and its conditions. For example, if a person clears land in excess of that which is permitted under a development consent, then they cannot point to the development consent as a defence if they have cleared the habitat of a threatened species.

6.1.6.2.3 Routine agricultural and farming activities

It is a defence if the person can prove that they were carrying out work which was reasonably necessary for: 108

• clearing native vegetation for a routine agricultural activity;
• a routine farming activity (which does not include clearing native vegetation); or
• an activity which is permitted under the Native Vegetation Act 2003, such as clearing non-protected regrowth, continuing an existing farming activity or engaging in sustainable grazing.

Routine agricultural activities include things such as: 109

• constructing dams, fences, stockyards and farm roads;
• removing noxious weeds;
• controlling noxious animals;
• collecting firewood (but not for commercial purposes);
• lopping native vegetation for stock fodder; and
• traditional Aboriginal cultural activities (but not commercial activities).

However, if the work, building or structure requires some form of approval (such as development consent), then the person must wait for the approval to be issued before carrying out the clearing. 110

6.1.6.2.4 Property vegetation plans

It is a defence if the act complained of was authorised by a property vegetation plan approved under the Native Vegetation Act 2003 (but only if that plan had biodiversity certification). 111

6.1.6.2.5 Property management plans

The Director-General may approve a property management plan which has been prepared by a landholder. 112 A property management plan may authorise the landowner, or others, to take certain actions (eg to authorise Aboriginal persons to harm animals or pick plants).

It is a defence to a threatened species offence if the person was carrying out the activity concerned in accordance with an approved property management plan. 113

6.1.6.2.6 Conservation agreements

Conservation agreements also provide an important defence to threatened species offences. It is a defence to a threatened species offence if the activity was carried out under a conservation agreement. 114

6.1.7 Enforcement

DECCW is responsible for enforcing the provisions of the Threatened Species Conservation Act and National Parks and Wildlife Act. The legislation may be enforced through criminal prosecutions, although DECCW may consider using its other enforcement powers before commencing a prosecution. These include the use of penalty notices, warning letters, stop work orders and interim protection orders.

If you think that someone has unlawfully interfered with a threatened species, population or ecological community, you should report it to DECCW on its Environment Line (toll free) 131 555 (24 hours).

6.1.7.1 Stop work orders

The Director-General may issue a stop work order if the Director-General is of the opinion that an activity is being, or is about to be carried out, that is likely to: 115

• Harm animals within a threatened species, population or ecological community;
• Harm plants within a threatened species, population or ecological community;
• Damage critical habitat; or
• Damage habitats of threatened species, populations or ecological communities.

Stop work orders cannot be issued for certain authorised or essential acts, such as acts authorised by a licence, development consent, property vegetation plan or fire fighting under the Rural Fires Act 1997. 116

Stop work orders may be issued for up to 40 days, 117 but may be extended for such further period or periods of 40 days. 118The Director-General is not required to notify anybody before making a stop work order. 119 If the Director-General is of the opinion that satisfactory arrangements cannot be made to modify the offending action to protect the threatened species, population or ecological community, the Director-General must recommend that the Environment Minister make an interim protection order. 120

A person against whom a stop work order is made may appeal against the order to the Environment Minister. 121 There is no further (merits) appeal against a stop work order unless the order is converted to an interim protection order.

6.1.7.2 Interim protection orders

The Environment Minister may make an interim protection order over land containing threatened species, populations or ecological communities, or critical habitat, but only after receiving a recommendation to do so from the Director-General. 122An interim protection order may contain terms relating to the preservation, protection and maintenance of the land, its fauna, plants, threatened species, populations, ecological communities and critical habitat as well as any Aboriginal object or places subject to the order. 123

The Minister does not need to give anyone notice before making an interim protection order. 124 An interim protection order has effect for such period as is specified in the order, being not longer than 2 years, unless revoked beforehand. 125 The Director-General must keep a public register of all interim protection orders. 126Current interim protection orders may be found on the NSW Government Gazette .

An owner or occupier of land subject to an interim protection order may appeal against the order to the Land and Environment Court within 60 days of receiving the order. 127

It is an offence not to comply with an interim protection order. The maximum penalty for a corporation is $1.1 million, or for an individual, $110,000. 128

6.1.7.3 Criminal prosecutions

6.1.7.3.1 Who may bring proceedings?

Only the Director-General or a person authorised by the Director-General can commence criminal proceedings. 129 In practice, this is usually an officer within DECCW or a police officer.

6.1.7.3.2 Sentencing options

The Land and Environment Court may impose significant fines and terms of imprisonment on offenders.

6.1.7.4 Civil remedies

The Land and Environment Court may grant an injunction to stop an activity that is causing harm to a threatened species or its habitat. It may also make an order to remedy or restrain a breach of the Threatened Species Conservation
Act or a declaration that a provision has been breached. Any person may bring proceedings to remedy or restrain a breach of the Threatened Species Conservation Act. 130

1. EPBC Act, s 26 - 27A.
2. EPBC Act, s 28.
3. EPBC Act, s 18 and 18A.
4. National Parks and Wildlife Act 1974, s 5 (Definitions)
5. Threatened Species Conservation Act 1995, ss. 6(4), 10(1), listed in Sch 1, Part 4.
6. Threatened Species Conservation Act 1995, ss. 6(4A), 10(2), listed in Sch 1, Part 1A.
7. Threatened Species Conservation Act 1995, s s.. 6 (1), 10(3), listed in Sch 1, Part 1.
8. Threatened Species Conservation Act 1995, s s. 7(1), 10(4), listed in Sch 2, Part 1.
9. Threatened Species Conservation Act 1995. ss 6(2), Sch 1, Part 2.
10. Threatened Species Conservation Act 1995, ss. 11(1).
11. Threatened Species Conservation Act 1995, s. 11(2).
12. Threatened Species Conservation Act 1995, Sch 1, Part 2
13. Threatened Species Conservation Act 1995, ss. 6(4B), 12(1), listed in Sch 1A, Part 2.
14. Threatened Species Conservation Act 1995, ss. 6(3), 10(2), and Sch 1, Part 3.
15. Threatened Species Conservation Act 1995, ss. 7(2), 12(3), listed in Sch 2, Part 2.
16. Threatened Species Conservation Act 1995, s. 19(1), (2).
17. Threatened Species Conservation Act 1995, s. 19(5).
18. Threatened Species Conservation Act 1995, s. 17, 128.
19. Threatened Species Conservation Act 1995, ss. 22, 23, 23A.
20. Threatened Species Conservation Act 1995, s. 24(4).
21. Threatened Species Conservation Act 1995, s. 27.
22. Threatened Species Conservation Act 1995, s. 28.
23. Threatened Species Conservation Act 1995, s. 30(1).
24. Threatened Species Conservation Act 1995, ss. 37- 47.
25. Threatened Species Conservation Act 1995, ss. 47(3), 48, 53, 54.
26. Threatened Species Conservation Act 1995, s. 55.
27. Threatened Species Conservation Act 1995, s. 50(b); Environmental Planning and Assessment Act 1979, s. 5B.
28. Threatened Species Conservation Act 1995, s. 50.
29. Threatened Species Conservation Act 1995, s. 92(2).
30. Environmental Planning and Assessment Act 1979, s. 78A(8)(b).
31. Fisheries Management Act 1994, s. 220G.
32. Fisheries Management Act 1994, s. 220G.
33. Fisheries Management Act 1994, s. 220H(2)(b).
34. Fisheries Management Act 1994, s. 220P.
35. Fisheries Management Act 1994, ss. 220ZA, 220ZD.
36. Environmental Planning and Assessment Act 1979, s. 5C.
37. Environmental Planning and Assessment Act 1979, s. 5C(2)(b).
38. Threatened Species Conservation Act 1995, Sch 3.
39. NSW Department of Primary Industries, 'Man fined for killing endangered grey nurse shark' (27 August 2008), available at www.dpi.nsw.gov.au/aboutus/news/recent-news/fishing -and-aquaculture/man-fined-for-killing-endangered-grey-nurse
40. Threatened Species Conservation Act 1995, s. 56.
41. Threatened Species Conservation Act 1995, s. 59.
42. Threatened Species Conservation Act 1995, s. 69.
43. Threatened Species Conservation Act 1995, s. 71.
44. They are listed in Schedule 3 of the Threatened Species Conservation Act.
45. Threatened Species Conservation Act 1995, s. 13.
46. Threatened Species Conservation Act 1995, s. 19(3).
47. Threatened Species Conservation Act 1995, s. 74.
48. Threatened Species Conservation Act 1995, s. 74.
49. Threatened Species Conservation Act 1995, ss. 74(1), 77.
50. Threatened Species Conservation Act 1995, s. 86.
51. Threatened Species Conservation Act 1995, s. 90A - 90E.
52. Threatened Species Conservation Act 1995, s. 90B(3).
53. Threatened Species Conservation Act 1995, s. 91.
54. National Parks and Wildlife Act 1974, s. 120.
55. Threatened Species Conservation Act 1995, s. 91(2).
56. Threatened Species Conservation Act 1995, ss. 92(1), 99.
57. Threatened Species Conservation Act 1995, s. 92(2).
58. Threatened Species Conservation Act 1995, ss. 94, 94A.
59. Threatened Species Conservation Act 1995, s. 106(1); Land and Environment Court Act 1979, s. 17.
60. Threatened Species Conservation Act, s. 106(1), 96(5)).
61. Threatened Species Conservation Act, s. 107.
62. Threatened Species Conservation Act, s. 108).
63. Threatened Species Conservation Act, ss. 96, 104.
64. Threatened Species Conservation Act 1995, ss. 126G - 126N.
65. Threatened Species Conservation Act 1995, ss. 126G - N.
66. Threatened Species Conservation Act 1995, ss. 126B - F.
67. Threatened Species Conservation Act 1995, s. 126G.
68. Threatened Species Conservation Act 1995, s. 126H.
69. Threatened Species Conservation Act 1995, s. 126J.
70. Threatened Species Conservation Act 1995, s. 126K.
71. Threatened Species Conservation Act 1995, s. 126G(2), (3).
72. Threatened Species Conservation Act 1995, s. 126G(4).
73. Threatened Species Conservation Act 1995, s. 126I(1), (2).
74. Threatened Species Conservation Act 1995, s. 126M.
75. Threatened Species Conservation Act 1995, s. 126M(2).
76. Environmental Planning and Assessment Act 1979, s. 78A(8)(b).
77. Environmental Planning and Assessment Act 1979, s. 79C(1)(b).
78. Environmental Planning and Assessment Act 1979, s. 79B(3), (5).
79. Environmental Planning and Assessment Act, s. 5B
80. Threatened Species Conservation Act 1995, s. 69.
81. Environmental Planning and Assessment Act 1979, ss. 5A(2)(f), (g).
82. Environmental Planning and Assessment Act 1979, s. 5A(2).
83. Environmental Planning and Assessment Act 1979, s. 79B(5).
84. Environmental Planning and Assessment Act 1979, s. 79B(8).
85. Environmental Planning and Assessment Act 1979, s. 79B(9).
86. Threatened Species Conservation Act 1995, s. 126N.
87. Threatened Species Conservation Act 1995, s. 126N(2).
88. Threatened Species Conservation Act 1995, s. 127D.
89. Threatened Species Conservation Act 1995 , s. 127ZK.
90. Threatened Species Conservation Act 1995, s. 127ZJ.
91. Threatened Species Conservation Act 1995, ss. 127ZO, 127ZP.
92. Threatened Species Conservation Act 1995, s. 127ZO(2).
93. Threatened Species Conservation Act 1995, s. 127ZQ(4).
94. Threatened Species Conservation Act 1995, s. 127ZZD.
95. Part 8A
96. National Parks and Wildlife Act 1974, s. 179.
97. National Parks and Wildlife Act 1974, s. 118A(1).
98. National Parks and Wildlife Act 1974, s. 118D(1).
99. National Parks and Wildlife Act 1974, s. 118C(1).
100. National Parks and Wildlife Act 1974, s. 118C(2).
101. National Parks and Wildlife Act 1974, s. 118B(1).
102. National Parks and Wildlife Act 1974, s. 118A(2).
103. National Parks and Wildlife Act 1974, s. 5.
104. National Parks and Wildlife Act 1974, s. 118B(1).
105. National Parks and Wildlife Act 1974, s. 11B(3).
106. National Parks and Wildlife Act 1974, s. 118A(3).
107. National Parks and Wildlife Act 1974, s. 118A(3)(b).
108. National Parks and Wildlife Act 1974, ss. 118G(1), (3).
109. National Parks and Wildlife Act 1974, s. 118G(2)
110. National Parks and Wildlife Act 1974, s. 118G(3)(b).
111. National Parks and Wildlife Act 1974, ss. 118A(3)(a2), 118D(2)(a2).
112. Threatened Species Conservation Act 1995, s. 113B(1).
113. Threatened Species Conservation Act 1974, s. 113B(6).
114. National Parks and Wildlife Act 1974, ss. 118A(3)(b1), 118B(5)(a1), 118C(5)(d), 118D(2)(d).
115. Threatened Species Conservation Act 1995, s. 114.
116. Threatened Species Conservation Act 1995, ss. 114(3), (3A), (4).
117. Threatened Species Conservation Act 1995, s. 114(1).
118. Threatened Species Conservation Act 1995, s. 117.
119. Threatened Species Conservation Act 1995, s. 115.
120. Threatened Species Conservation Act 1995, ss. 118, 119.
121. Threatened Species Conservation Act 1995, s. 116.
122. National Parks and Wildlife Act 1974, ss. 91A(b), 91B.
123. National Parks and Wildlife Act 1974, s. 91B.
124. National Parks and Wildlife Act 1974, s. 91C.
125. National Parks and Wildlife Act 1974, ss. 91D, 91E.
126. National Parks and Wildlife Act 1974, s. 91I.
127. National Parks and Wildlife Act 1974, s. 91H; Land and Environment Court Act 1979, s. 20(1)(cf); Land and Environment Court Rules 2007, Rule 6.1.
128. National Parks and Wildlife Act 1974, s. 91G.
129. National Parks and Wildlife Act 1974, s. 191.
130. Threatened Species Conservation Act 1995, s. 141F.

EDO NSW

Home | Disclaimer | Privacy | Contact Us | Support Us