The information contained in this fact sheet is current as at 16 October 2006.

Topic 4 – Natural Resources

4.4. Vegetation Management

Native vegetation plays a vital role in supporting biodiversity and ecosystem function. Removal of native vegetation is recognised as a key threatening process for endangered species and is a major contributing factor in soil erosion, salinity and degradation of catchment areas.

This section describes the principal laws governing the management of vegetation in New South Wales. In particular, this section describes the protection of vegetation:

• under the Native Vegetation Act 2003; and
• under the Environmental Planning and Assessment Act 1979.

For information about the regulation of forestry operations on public and private land, see Topic 4.2 – Forestry.

For information about protection of threatened species and habitat, see Topic 5.1 – Protected Species Law.

For information about protection of vegetation in national parks and conservation areas, see Topic 5.2 – Protected Areas Law.

4.4.1. Vegetation Management in Rural Areas

The Native Vegetation Act 2003 is the principal legislation controlling the management of native vegetation in rural areas of New South Wales. The Act applies essentially to rural land that is privately owned or leased. Urban land, State forests, national parks and conservation areas are excluded from the operation of the Act. [1]

Native vegetation is defined to include trees (including any sapling or shrub, or any scrub), understorey plants, groundcover (being any type of herbaceous vegetation) and plants occurring in a wetland, so long as the species existed in New South Wales before European settlement. [2] However, mangroves, seagrasses or any other type of marine vegetation are excluded. [3]

4.4.1.1. Classification of Vegetation

The Native Vegetation Act divides native vegetation in New South Wales into three types: remnant , protected regrowth and unprotected regrowth .

Remnant vegetation can only be cleared in limited circumstances. It is defined as any native vegetation other than regrowth. [4] Vegetation remains remnant if it has regrown following unlawful clearing or following clearing of remnant native vegetation caused by bushfire, flood, drought or other natural cause. [5]

Regrowth is defined artificially as any native vegetation that has regrown since 1990 – or 1983 for land in the Western Division – except where a Property Vegetation Plan specifies another date (in limited circumstances). [6] Regrowth is, in turn, defined as ‘protected' or ‘unprotected' regrowth.

Native vegetation is protected regrowth if its preservation is consistent with State-wide natural resource management standards and targets and is identified as such in:

• a Property Vegetation Plan,
• an Environmental Planning Instrument,
• a Natural Resource Management Plan, or
• an interim protection order made by the Minister pending assessment of its status. [7]

Furthermore, native vegetation will be automatically defined as protected regrowth if it has at any time been grown or preserved with the assistance of public funds granted for biodiversity conservation purposes. [8]

Unless it falls into one of these categories, regrowth will be unprotected regrowth .

4.4.1.2. Land Clearing Offences

One of the key objects of the Native Vegetation Act is to prevent broadscale clearing unless it improves or maintains environmental outcomes. [9] Broadscale clearing is defined under the Act as the clearing of any remnant native vegetation or protected regrowth. [10]

The Native Vegetation Act makes it an offence to clear native vegetation unless the clearing is approved, permitted or exempt in the following circumstances: [11]

• a development consent has been obtained from the Minister; [12]
• a Property Vegetation Plan has been approved; [13]
• the vegetation is unprotected regrowth; [14]
• the vegetation is certain groundcover; [15]
• for routine agriculture management activities; [16]
• for continuation of existing cultivation, grazing or rotational farming practices; or [17]
• for sustainable grazing. [18]

The Native Vegetation Act does not apply to certain types of clearing authorised under the following legislation:

• State Emergency and Rescue Management Act 1989;
• Rural Fires Act 1997;
• Threatened Species Conservation Act 1995;
• Environmental Planning and Assessment Act 1979;
• Fisheries Management Act 1994;
• National Parks and Wildlife Act 1974;
• Mining Act 1992;
• Petroleum (Onshore) Act 1991;
• Plantations and Reafforestation Act 1999;
• Roads Act 1993;
• Rivers and Foreshores Improvement Act 1948;
• Surveying Act 2002;
• Water Act 1912; or
• Water Management Act 2000. [19]

4.4.1.3. Property Vegetation Plans

Property vegetation plans are a voluntary conservation measure. They are the primary mechanism for landholders to take advantage of financial incentives offered by the government for conservation on private land. Landholders may make Property Vegetation Plans to manage native vegetation on their land. [20] These plans may be made for up to fifteen years and bind future owners of the land. [21]

Property Vegetation Plans may address a range of matters, including:

• clearing of native vegetation (including any vegetation offset areas required);
• identification of native vegetation as regrowth;
• thinning of certain native vegetation; [22]
• continuation of existing farming or other rural practices;
• exclusion of certain types of clearing from being permitted clearing;
• funding of native vegetation management activities; and
• such other provisions as are prescribed by the Regulations. [23]

Property Vegetation Plans must be approved by the Minister for Natural Resources, [24] But in practice will be negotiated between the landholder and the local Catchment Management Authority. In deciding whether to approve a plan, the Minister is to have regard to Catchment Action Plans prepared by Catchment Management Authorities and to the matters required by the Regulations. [25]

Broadscale clearing of native vegetation is not to be approved unless the clearing concerned will improve or maintain environmental outcomes. [26] Plans may be varied with the approval of the Minister, and terminated in limited circumstances. [27]

4.4.1.4. Enforcement

The Native Vegetation Act empowers authorised officers of the Department of Natural Resources to enforce its provisions. These include powers in relation to entry and inspection, information, stop work orders, remedial work and criminal prosecutions. [28] Any person may bring civil proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the Native Vegetation Act. [29]

Entry and Inspection

If a landholder consents, or with the authorisation of the Director General, an authorised officer may enter onto land to determine whether a breach has taken place or is taking place. [30] Premises used for residential purposes may only be entered onto with the consent of the landholder. [31]

Once on the land, the officer may conduct such investigations; make such inquiries, examinations and inspections; and take such samples and recordings (including photographs), as he or she considers necessary. [32]

The officer may also require a landholder or other person to produce any records or documents that relate to any clearing of native vegetation on any land, and to provide such reasonable assistance and facilities as may be requested to exercise the officer's functions. [33]

It is an offence to obstruct an officer in the exercise of their functions or to fail or refuse to comply with a requirement made by an officer without reasonable excuse. [34]

Power to Obtain Information

In order to determine whether the Act is being breached, the Director General may serve a notice on a person requiring them to give an authorised officer relevant information or to produce any document containing relevant information. [35]

It is an offence to fail to comply with such a notice to the extent that the person is capable of complying with it, or to give information that it is false or misleading without reasonable excuse. [36] A person may not claim self-incrimination as a ground for not giving information, answering questions or producing documents under this section. [37]

Information or documents obtained from a natural person (as opposed to a corporate person such as a company) under this section are not admissible against the person in criminal proceedings other than proceedings for an offence under this section. [38]

Stop Work Orders

The Director General may, by notice in writing given to a person, order that person not to carry out the activity concerned if he or she believes the Act is being breached. [39] These orders take effect immediately (or as specified) and may be subject to conditions. [40]

Stop work orders remain in force for up to two years. [41] The Director General may vary or revoke the order or the conditions of the order by further notice in writing given to the person. [42] It is an offence not to comply with a stop work order. [43]

Remedial Work

The Director General may direct the landholder (or the person having the control or management of the clearing), to carry out remedial works if he or she is satisfied that there has been a breach or that clearing on any land has caused, or is likely to cause, on or in the vicinity of the land, adverse effects on the environment. [44] Remedial works include:

• work to repair any damage caused by the clearing;
• work to rehabilitate any land affected by the clearing;
• work to ensure that specified land or water will not be damaged or detrimentally affected. [45]

Directions for remedial works may be varied or revoked. [46]

It is an offence not to comply with a direction, and the Act provides for continuing penalties for non-compliance. [47] If a person fails to comply with a direction under this section, the Director General may authorise any other person to enter the land and carry out the specified work and recover the costs. [48]

Injunction Proceedings

Any person may commence civil proceedings in the Land and Environment Court for an order to remedy or restrain a breach, or imminent breach, of the Act. [49] The Court has wide powers to remedy or restrain the breach if satisfied that a breach has, or will, occur. [50]

4.4.2. Vegetation Management in Urban Areas

Environmental Planning Instruments prepared under the Environmental Planning and Assessment Act play an important role in protecting trees and bushland in urban areas. This section describes the effect of the following Environmental Planning Instruments:

• State Environmental Planning Policy No. 19 – Bushland in Urban Areas ;
• tree preservation orders contained in, or made pursuant to, Local Environmental Plans; and
• vegetation management and development assessment.

See Section 2.1.1.1. Types of Environmental Planning Instruments for more information.

4.4.2.1. State Environmental Planning Policy No. 19: Bushland in Urban Areas

State Environmental Planning Policy No. 19: Bushland in Urban Areas applies to bushland zoned or reserved as public open space. It affects councils when they propose to rezone urban bushland reserves for urban subdivision.

The policy requires that councils give priority to retaining bushland in draft Local Environmental Plans, unless they are satisfied that significant environmental, economic or social benefits will outweigh the value of the bushland. [51]

The policy states that bushland zoned or reserved as public open space must not be disturbed without council's consent. Councils are required to advertise, exhibit and receive submissions from the public about a proposed development before it agrees to any development of land protected by the policy. [52]

In considering development applications for development on land that adjoins a bushland zone, the consent authority (decision-maker) must take into account the environmental effects this will have on the reserved bushland in terms of the erosion of soils, the silting of streams and waterways and the spread of weeds and exotic plants within the bushland. [53]

4.4.2.2. Tree Preservation Orders

A Tree Preservation Order (TPO) is an order made by a council which makes it an offence to damage certain trees in a Local Government Area or zone. The terms of TPOs vary from council to council and some councils do not have them. To find out if a specific tree is protected, ask to see a copy of the TPO at your local council offices. You may also be able to find a copy of a TPO on your local council's website.

The power to make a TPO for a Local Government Area is found in the Local Environmental Plan. The order itself will often be included in the Local Environmental Plan, including a description of the activities which are prohibited, the circumstances in which a breach of the Order may be prosecuted, and the defences to a prosecution for breach of the Order.

Some councils have incorporated the tree preservation provisions from the State government's Model Provisions into their Local Environmental Plans, and the discussion below relates to these provisions. However, councils are free to vary these provisions, so readers should check the tree preservation provisions in their own Local Environmental Plan.

Breach of a Tree Preservation Order

TPOs usually make it an offence to ring bark, prune, willfully destroy, cut down or remove a tree without written consent from the council. [54] It may be an offence to contravene the Order or to permit contravention of the Order. [55]

The TPO may only apply to trees over a certain size and will often include an exemption for species that are considered a nuisance, such as camphor laurel.

Breaching a TPO is a strict liability offence, which means that it is not necessary to prove that the person knew that he or she was breaching the order in order to establish that the person is guilty of the offence..

Under most Local Environmental Plans, a person cannot be found guilty of breaching a TPO if:

• the tree was dead or dying or had become dangerous; [56]
• it was necessary to remove the tree because of a bushfire emergency; [57]
• the council had confirmed in writing that the tree was in a fuel free zone and was of a species which presented a significant fire hazard; [58] or
• the person gave fourteen days' notice to the local council, and the council did not object [59].

Enforcement of Tree Preservation Orders

The local council may prosecute a person for breach of a TPO in the Local Court or the Land and Environment Court. [60] The offender may also be ordered to plant new trees and vegetation and maintain them to maturity.[61]

To convict a person of breaching a TPO, the prosecutor must show beyond reasonable doubt that the person committed the offence. This can often be difficult, as there may have been no witnesses to the tree/s being destroyed, or the identity of the persons who destroyed the tree/s may not be clear. Councils are often unwilling to bear the costs of prosecuting breaches of TPOs.

Any person can bring civil proceedings in the Land and Environment Court to prevent a breach of a TPO (for example, to obtain an order to prevent someone from cutting down a tree). [62] In this case, it is only necessary to prove on the balance of probabilities that a breach has occurred or is about to occur.

Vegetation Management and Development Assessment

If a development is proposed which involves the loss of any trees, the loss of those trees is part of the development's environmental impact. The environmental impact of a development is one of the factors which the consent authority (decision-maker) must take into account in deciding whether or not to approve the development. [63]

In some cases, the developer is required to retain certain trees as a condition of development consent to reduce the environmental impacts of the development. In this case, damage to the trees could be prosecuted as a breach of development consent under the Environmental Planning and Assessment Act.

For more information on development assessment and enforcement of consent conditions, see Section 2.1.2 – Development Assessment.

References

1. Native Vegetation Act 2003, s. 5, Schedule 1.
2. Native Vegetation Act 2003, s. 6(1),(2).
3. Native Vegetation Act 2003, s. 6(3), See: Fisheries Management Act 1994 , s. 205.
4. Native Vegetation Act 2003, s. 9(1).
5. Native Vegetation Act 2003, s. 9(4).
6. Native Vegetation Act 2003, s. 9(2).
7. Native Vegetation Act 2003, s. 10(1).
8. Native Vegetation Act 2003, s. 10(2).
9. Native Vegetation Act 2003, s. 3(b).
10. Native Vegetation Act 2003, s. 8.
11. Native Vegetation Act 2003, s. 12(1). A person who carries out or authorizes clearing under section 12 is guilty of an offence and liable for the maximum penalty as prescribed by Environmental Planning and Assessment Act 1979 , s. 126 i.e. either the penalty is expressly imposed, or if no penalty is expressly imposed, a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units.
12. Native Vegetation Act 2003, s. 13.
13. Native Vegetation Act 2003, Part 4.
14. Native Vegetation Act 2003, s. 19.
15. Native Vegetation Act 2003, s. 20.The groundcover must comprise less than 50% indigenous species, and not less than 10% of the area must be covered with vegetation. See also Native Vegetation Regulation 2005 , cl. 42.
16. Native Vegetation Act 2003, s 22. The Native Vegetation Regulation 2005 provides further detail on clearing buffer distances around such activities in different parts of the state: cl 20. This clearing must be to the ‘minimum extent necessary.'
17. Native Vegetation Act 2003, s. 23.
18. Native Vegetation Act 2003, s. 24.
19. Native Vegetation Act 2003, s. 25.
20. Native Vegetation Act 2003, s. 26, see generally Native Vegetation Act 2003, Part 4.
21. Native Vegetation Act 2003, s. 30.
22. Native regrowth in central New South Wales that has regrown between 1 January 1983 and 1 January 1990.
23. Native Vegetation Act 2003, s. 28.
24. Native Vegetation Act 2003, ss. 27(1), 48.
25. Native Vegetation Act 2003, s. 27(2).
26. Native Vegetation Act 2003, s. 29(2).
27. Native Vegetation Act 2003, s. 30(2).
28. Native Vegetation Act 2003, Part 5.
29. Native Vegetation Act 2003, s. 41.
30. Native Vegetation Act 2003, s. 35(1).
31. Native Vegetation Act 2003, s. 35(4).
32. Native Vegetation Act 2003, s. 35(2)(a).
33. Native Vegetation Act 2003, ss. 35(2)(b), (c).
34. Native Vegetation Act 2003, s. 35(5). The maximum penalty is $11,000.
35. Native Vegetation Act 2003, s. 36(2).
36. Native Vegetation Act 2003, s. 36(4). The maximum penalty is $11,000.
37. Native Vegetation Act 2003, s. 36(5).
38. Native Vegetation Act 2003, s. 36(6).
39. Native Vegetation Act 2003, s. 37(1).
40. Native Vegetation Act 2003, s. 37(2).
41. Native Vegetation Act 2003, s. 37(4).
42. Native Vegetation Act 2003, s. 37(3).
43. Native Vegetation Act 2003, s. 37(5). The maximum penalty for this offence is: For a corporation — $220,000 penalty units and 200 penalty units for each day the offence continues; For any other case — $110,000 penalty units and $11,000 penalty units for each day the offence continues.
44. Native Vegetation Act 2003, s. 38(1).
45. Native Vegetation Act 2003, s. 38(2).
46. Native Vegetation Act 2003, s. 38(3).
47. Native Vegetation Act 2003, s. 38(4). The maximum penalty for this offence is: For a corporation—2,000 penalty units and 200 penalty units for each day the offence continues; For any other case—1,000 penalty units and 100 penalty units for each day the offence continues.
48. Native Vegetation Act 2003, ss. 38(5), (6).
49. Native Vegetation Act 2003, s. 41(2).
50. Native Vegetation Act 2003, s. 41(5).
51. State Environmental Planning Policy No. 19 , cl. 10. SEPPs are available at: www.legislation.nsw.gov.au.
52. State Environmental Planning Policy No. 19 , cl. 6.
53. State Environmental Planning Policy No. 19 , cl. 9(2)(d)
54. Model Provisions cl. 8(2).
55. Model Provisions cl. 8(5).
56. Model Provisions cl. 8 (6)(a).
57. Model Provisions cl. 8 (6)(b).
58. Model Provisions cl. 8 (6)(c).
59. Model Provisions cl. 8(6)(d)
60. Environmental Planning and Assessment Act 1979 , s. 126(1). The maximum penalty in the Local Court is $110,000, while the maximum penalty in the Land and Environment Court is $1,100,000.
61. Environmental Planning and Assessment Act 1979 , s. 126(3).
62. Environmental Planning and Assessment Act 1979 , s. 123.
63. Environmental Planning and Assessment Act 1979 , s. 79C(1)(b).

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