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Outline of Legal Approaches to Land Clearing This paper forms part of the Proceedings of the 2002 EDO National Land Clearing Conference. Full proceedings are available. See the National EDO Network Home Page for details.Mark Parnell, Solicitor, Environmental Defenders Office (SA) Inc. [Mark.Parnell@edo.org.au] Outline of Legal Approaches to Land Clearing [GO]
Introduction [GO] General Legal Principles [GO] Scope of legislation [GO] What vegetation is protected? [GO] What kind of clearance is regulated? [GO] What kind of clearance is exempted? [GO] Who decides whether or not clearance is allowed? [GO] Decision-making criteria? [GO] Clearance application requirements [GO] What enforcement mechanisms exist? [GO] Landholder rights [GO] Public participation [GO] Integration with other regulatory regimes [GO] Incentives Not to clear [GO] Native Vegetation laws around Australia [GO] Commonwealth [GO] States & Territories [GO] NSW [GO] Queensland [GO] South Australia [GO] Tasmania [GO] Western Australia [GO] Victoria [GO] Australian Capital Territory [GO] Northern Territory [GO] Introduction [Back to Contents] This paper has two purposes: 1. To provide a general description of legal issues and approaches relevant to land clearing legislation; and 2. To provided a brief outline of the legal approaches to land clearing in the States and Territories. For an analysis of best practice land clearing legislation, see the paper by Jo Bragg, which also outlines the preferred EDO options for law reform, particularly in those States & Territories that have no (or ineffective) land clearing laws. General Legal Principles [Back to Contents] Generally, the two main objectives of native vegetation regulation are: 1. Clearance control mechanisms - establishing assessment and approval mechanisms for applications to clear; and 2. Vegetation retention mechanisms - establishing a voluntary or compulsory regime for the protection of remnant native vegetation. The range of mechanisms to achieve these objectives include: 1. Specific native vegetation legislation (eg. S.A.) 2. Use of general land-use planning legislation (most jurisidictions) 3. Use of resource of environment protection legislation 4. A mixture of the above. What vegetation is protected? [Back to Contents] Defining "native vegetation" is of utmost importance in defining the scope of legislation. The first distinction to be drawn is between Australian native vegetation and exotic vegetation. This distinction can be further refined to limit protection to "indigenous" or naturally occurring local vegetation. Most parts of Australia include vegetation that does not occur naturally in the area but originates from other parts of Australia. For example, South Australian woodlands include many eucalypt species introduced from Western Australia or Tasmania. Confining definitions to "naturally occurring vegetation" can be used to distinguish "planted" vegetation from vegetation that has grown without human intervention. Such definitions become problematic when considering that planted vegetation can be from local seed stock and that the progeny of such planted trees may be protected whereas the parent isn't. This distinction may seem trite in those States where vegetation clearance amounts to tens or hundreds of thousands of hectares per year, however it is a real issue in South Australia, where much of the debate if over individual trees since broad-acre clearance was effectively banned over 10 years ago. Distinctions also need to be made between "trees" and other forms of vegetation such as understory species, grasses and marine vegetation. Most legislation covers all terrestrial native vegetation, however it is most likely to be trees that are singled out for protection in urban environments. A final distinction to be made is between living and dead vegetation. The habitat values of dead vegetation (such as trees with nesting hollows or fallen vegetation) is well recognised, yet most jurisdictions only protect living vegetation.
What kind of clearance is regulated? [Back to Contents] The most obvious type of clearance (and the type most in need of regulation) is deliberate wholesale clearance for forestry, cropping, grazing or urban development. In most jurisdictions, there are threshold levels set, above which some form of approval is required. However, some legislation (notably SA) protects all native vegetation and requires all clearance to be approved, including removal of individual plants and even damage to individual plants. Aside from broadacre clearance by mechanical means, it is also possible to clear or kill vegetation by fire, grazing, flooding or draining land (or nearby land) on which that vegetation depends. To be effective, all clearance methods must trigger regulatory mechanisms.
What kind of clearance is exempted? [Back to Contents] No jurisdiction has an absolute prohibition on clearing vegetation. Such a prohibition would be politically, socially and economically unacceptable. It also would not be ecologically defensible. All regimes, to a greater or lesser extent, restrict regulation to larger scale or more serious clearance or clearance that is "unjustified". The justification for clearance is most usually dealt with in the form of exemptions. Typical "justification-based" exemptions include exemptions for specific purposes such as for building work, fire breaks, fuel reduction, fencing materials, tracks, fence lines, scientific study or mining. Exemptions may also be justified on the basis of existing use rights such as grazing. Exemptions on the basis of land tenure are common, with the principle distinction being between freehold and leasehold land. Other exemptions may be provided on the basis of zoning (eg. Urban vs rural zoned land) Whilst many environmental laws now "bind the Crown", it is common for native vegetation laws to exempt specific bodies such as utility providers or local councils in relation to vegetation along power lines or on roadsides. The use of exemptions can be controversial, especially in relation to their cumulative impact. For example, it is possible in South Australia to effectively clear smallish blocks of rural residential land by relying on exemptions, especially those relating to fire breaks, fence lines etc.. Most controversial are cases where an applicant who has been refused condition to clear manages to obtain political support for a special case exemption.
Who decides whether or not clearance is allowed? The choice of decision-maker may not necessarily affect the quality of decisions, (if appropriate advice is obtained), however it is likely to affect the acceptability of the decision to various stakeholder groups. Typically, decisions whether or not to approve clearance are made by Ministers, Public servants, Statutory native vegetation authorities or land use planning authorities (such as local councils). Another suitable candidate would be Environment Protection Authorities.
Decision-making criteria? [Back to Contents] Perhaps more important that the choice of decision-maker, is the provision of decision-making criteria. At one end of the spectrum is unfettered discretion, whilst at the other end, is a requirement to comply strictly with statutory criteria. Many jurisdictions provide for decisions to be made according to various policies or guidelines. These can be area based or based on the type of clearance involved. The extent to which a standard or policy will dictate the result of a clearance application will depend on the wording of the legislation. A typical test is that used in land use planning regimes such as the "seriously at variance" test used in SA. It is also likely that legislation governing land clearing will seek to balance economic, social and ecological considerations. This balance is also implicit in the concept of "ecologically sustainable development", which is increasingly finding its way into environmental law generally.
Clearance application requirements [Back to Contents] Most native vegetation clearance control regimes are bureacratic by nature. This includes application fees, provision of information and statutory timelines. Most governments now prefer "cost recovery" so it is likely that applications to clear will also include a requirement that the applicant pay assessment fees, referral fees or even the cost of independent scientific assessment reports. In some cases, an application to clear my trigger the need for compulsory vegetation management plans (for the vegetation remaining on the site after clearance is approved).
What enforcement mechanisms exist? [Back to Contents] Prescriptive environmental laws are only as good as the enforcement methods behind them. At one end of the enforcement spectrum is prosecution, which provides for criminal penalties for illegal (or unauthorised) clearance or for failing to comply with conditions attached to approval. Mostly, prosecution is restricted to "authorised officers" of various land management agencies, however some jurisdictions allow private prosecution. In addition to (or an alternative to) prosecution is the use of civil enforcement methods such as Orders, including requirements to "make good" any breach. One important aspect of such orders will be whether or not any illegal clearance is required to be replaced in exactly the same location or whether it can be reinstated on other parts of the property or even on other nearby properties (with the owners consent). In minor cases breach, expiations (on the spot fines) may be appropriate.
Landholder rights [Back to Contents] Administrative law requires that applicants for approval or licences or permits be afforded the opportunity to put their case and to have it carefully considered by the decision-maker. A failure to provide "natural justice" is likely to give rise to an action for "judicial review" against the decision-maker. Such provisions are usually not controversial. More controversial is the issue of whether or not to allow dissatisfied applicant the right to appeal "on the merits" against the decision to refuse clearance. If such a right is to be granted, an appropriate appeal forum needs to be determined. Whether or not an applicant can appeal, the question of compensation for opportunity costs foregone" is a live political issue in most parts of Australia, but particularly Queensland.
Public participation [Back to Contents] Public participation can occur at many stages during the process or planning for or regulating native vegetation. Participation can occur at the policy formulation phase right through to the stage at which individual applications for clearance are considered. Possible rights of participation at this stage include the right to access to Information about applications to clear, the right to make representations or submissions on applications and the right to appeal decisions on the merits
Integration with other regulatory regimes Whilst the rhetoric of government is often about "integrated land management" or "whole of government approach", the reality is often that vegetation laws are isolated from other land use planning or resource management regimes. Some of the links that should occur include compulsory referrals to fire authorities, wildlife management authorities, water authorities and planning authorities.
Incentives Not to clear [Back to Contents] As well as providing a mechanism for dealing with applications to clear native vegetation, it is also important that legislation provide a range of incentives to encourage landholders to retain and manage vegetation for conservation purposes. Such incentives can include tax or rate relief as well as the provision of funds to assist in management such as the cost of fencing native vegetation from areas used for grazing.
Native Vegetation laws around Australia The Environment Protection and Biodiversity Conservation Act 1999 implements Australia’s obligations under a number of international environmental treaties, such as World Heritage and Ramsar Wetlands treaties. In addition, it purports to implement Australia's obligations under the 1992 Convention on Biological Diversity. Article 8(b) of the Convention sets out that parties must Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings. The EPBC Act provides for a number of ‘matters of national environmental signficance’, which trigger a need for impact assessment at a Commonwealth level. The list of triggers can be expanded without the agreement of the States, through the making of a Regulation by the Commonwealth. As such, it is possible that a trigger for Commonwealth environmental impact assessment in relation to land clearing activities could in future be included in the EPBC Act. At present, the EPBC Act does list land clearing as a ‘key threatening process. Such processes are ones which threaten the survival, abundance or evolutionary development of a native species, or an ecological community in that it affects a listed species, or may result in a species becoming listed (s188). This listing provides for a threat abatement plan to be put in place, however this is a discretionary decision and at present there is no such plan relating to land clearing. Should such a plan be implemented, however, its provisions are mandatory.
States & Territories [Back to Contents] Most legislation which directly regulates land clearing is to be found at a State and Territory level. Consequently, there is little uniformity in either the approach or substance of these laws. It is possible to discern two general approaches amongst the states to land clearing legislation. These are:
It should be noted that Western Australia has recently announced that it would be enacting comprehensive land clearing controls.
In NSW, the key piece of legislation is the Native Vegetation Conservation Act 1997. The act regulates native vegetation in NSW, regardless of the form of tenure of the land on which the vegetation is located. The Act covers the clearing of any type of indigenous vegetation apart from marine vegetation (which is regulated under the Fisheries Management Act 1994), and provides for controls in relation to the clearing of any vegetation on protected land, including exotic or dead vegetation. The primary management mechanism for native vegetation under the NVC Act is that of Regional Vegetation Management Plans. These can be prepared with considerable discretion and may make provisions for the clearing of specified land without requiring development consent. To date, there has only been one Regional Vegetation Management Plan entered into, in the Mid-Lachlan region of NSW (which includes Parkes and Forbes). Where there is no Regional Vegetation Management Plan in place, development consent is required for the clearing of native vegetation. Due to the current lack of Management Plans, this is applicable to the majority of NSW. There are, of course, a number of exemptions allowing for clearing without consent. These include the clearing of up to 2ha of land per year, the clearing of regrowth under 10 years old, and minimal clearing for the construction, operation and maintenance of farm structures. There are also types of land which are excluded from the operation of the NVC Act, such as critical habitat under the Threatened Species Conservation Act 1995, land which is the specific subject of a SEPP, and to a large extent urban land, being that zoned residential, business or industrial and that within designated local government areas. Where a native vegetation code of practice, which regulates clearing practices for specific purposes, such as those of a particular industry, is approved by the Minister and adopted by regulation, the activities within the scope of the code are exempt from the requirement for development consent. A code of practice can also be incorporated into a regional vegetation management plan. To date no such codes of practices have been adopted.
The legislative regime relating to clearing on freehold land in Queensland is set out by the Vegetation Management Act 1999 and operates through the Integrated Planning Act 1997. Where leasehold land is involved, the applicable statute is the Land Act 1994. As in NSW the Vegetation Management Act 1999 covers clearing of all native trees or plants apart from those marine plants and mangroves as regulated by the Fisheries Act 1994. The Vegetation Management Act 1999 identifies certain regional ecosystems as being endangered, of concern or not of concern. This is relevant in that landowners must retain any endangered regional ecosystems, however, can obtain permits to clear those which are merely ‘of concern’. The permit system operates through the Integrated Planning Act 1997, by defining land clearing as development. In issuing a permit , applications are viewed against a statewide clearing code, unless a regional vegetation management plan is in place containing such a code. To this time, no such plans have been completed, although the Minister for Natural Resources is under an obligation to prepare such for all freehold land. The clearing of leasehold land is also regulated through a permit system under the Land Act 1994, and leaseholders are generally required to retain all endangered and of concern ecosystems on their land. There are of course exemptions to permit requirements under both legislative regimes, and include urban areas, clearing for essential management, and burning off and the clearing of regrowth on leasehold land.
South Australia [Back to Contents] South Australia has one of the most effective regimes for regulating land clearance. The Native Vegetation Act 1991 (and its predecessors, especially the Native Vegetation Management Act 1985) have effectively ended most broadscale clearance in the State. The Act covers the whole State (with the exception of metropolitan Adelaide) and all forms of land tenure. "Native vegetation" is broadly defined and includes nearly all living indigenous vegetation including marine vegetation. The Act is administered by an independent statutory body, - the Native Vegetation Council. This council determines applications for consent to clear. The discretion of the Council to approve clearance is restricted by a requirement to act consistently with detailed "principles of clearance" set out in the Act. The Act also requires consideration to be given to balancing primary production requirements with environmental protection. It is an offence to clear native vegetation in the absence of a consent. Penalties can include substantial fines or re-instatement orders.
In Tasmania, the vast majority of land clearing is connecting with forestry operations, and as such are regulated under the Forest Practices System. There is no specific land clearing legislation with any control of non-forestry related clearing occurring under the Resource Management and Planning System. Clearing on private land often requires no planning approval, as approval only needs to be sought where a person seeks to develop land, undertake a new development or expand an existing development. As development of land relates to making material changes in the use of the land, clearing in a rural context may not be considered as development provided the use of the land did not change, and therefore may take place unregulated.
Western Australia [Back to Contents] Historically the most significant cause of biodiversity loss in Western Australia is land clearing, a trend which continues today. The regulation of land clearing in agricultural regions does not take place under a comprehensive system, such as that of South Australia, but rather occurs under a number of different legislative regimes tied together by a non-binding 1997 Memorandum of Understanding for the Protection of Remnant Vegetation on Private Land in the Agricultural Region of Western Australia. Western Australia’s patchwork of different laws relating to land clearing includes the Soil and Land Conservation Act 1945 (WA); Land Administration Act 1997 (WA); and the Wildlife Conservation Act 1945. [For a useful summary, see Bennett M. Land Clearing: Reforming the Law in WA No. 65 Impact March 2002 page1] The clearing of agricultural land occurs under the Soil and Land Conservation Act 1945 and the regulations provide that 90 days prior notice be given to the Commissioner for Soil and Land Conservation of an intention to clear. The Commissioner has the capacity to object to the proposed clearing on the basis of possible degradation of the land, and the view taken by the Commissioner is that of placing the onus of proof land degradation upon the landholder. Where the Commissioner believes that a proposal is likely to have a significant effect on the environment, they are obliged to refer the proposal to the Environmental Protection Authority (Environmental Protection Act 1986 s.38(1)(a). There is also a system in place by which all proposals not objected to by the Commissioner are reviewed by a working group which includes an officer of the Department of Environmental Protection, and such group will advise the Commissioner should they feel a referral to the EPA is appropriate. The EPA, if it determines that environmental impact assessment should be undertaken, will do so and prepare a report for the Minster for the Environment including its recommendations. The EPA is guided by a Position Statement , Environmental Protection of Native Vegetation in Western Australia: Native Vegetation Clearing in Western Australia, with Particular Reference to the Agricultural Area (Position Statement No 2) December 2000 which indicates that they are extremely reluctant to recommend that clearing proposals proceed in view of the extent of clearing to date. The Minister then makes a determination on the clearing proposal and may choose to attach conditions to any consent. It is only through an impact assessment process that biodiversity considerations can be taken into account, as the Commissioner is limited to examining impacts upon the productive capacity of the land, such as erosion and salinity. There are two clear problems in relation to the clearing of agricultural land in Western Australia. The first is that as the maximum penalty for those who fail to notify the Commissioner of proposed clearing is only $2000, there any many that simply do not engage in the regulatory process and clear without notification. The second problem is that even where the EPA is in the process of assessing a proposal, should 90 days lapse from the date of notification and the Commissioner has not imposed a soil conservation notice, clearing can commence without penalty.
The regulation of clearing in agricultural areas does not cover significant areas of Western Australia. Significant areas of remnant vegetation is often located on roadsides and there is no obligation upon either the Main Roads Department or local government to notify their intention to clear roadside areas as clearing for road construction does not amount to a change in land use. There is a requirement to seek a licence to clear more than 0.2 hectares within a declared country drinking water catchment, a capacity to seek compensation where clearing permission is refused, and inadequate penalties for illegal clearing, being a maximum fine of $2000 and a possible revegetation order. There is no requirement to seek permission to clear in urban areas, however, clearing proposals may be assessed as part of the development approval processes in place. Clearing proposals associated with mining are assessed by the State Mining Engineer, who has delegated powers from the Commissioner and they may be subject to impact assessment by the EPA. Those who wish to clear on a pastoral lease must, unless it is permitted under the lease, seek a permit from the Pastoral Lands Board. Where a pastoral lessee clears without consent, there is a maximum fine of $10,000 and an obligation to restore the land and vegetation (S109 Land Administration Act 1997 On 25 June 2002, the Western Australian Government announced major reforms to the Environmental Protection Act 1986 (WA), including a new permit system for clearing of native vegetation. Under the proposed reforms, the existing patchwork of ineffective laws would be replaced by a State-wide clearing permit system.
Victorian planning law is predominantly found in the Planning and Environment Act 1987, as amended in 2000. The Act applies to all land in Victoria, regardless of tenure and the clearing of vegetation falls within the Act’s definition of development. The Victorian Planning Provisions are a state-wide reference document from which individual planning schemes are drawn up, and under s52.17 a permit is required where more than 0.4 hectares of native vegetation is to be cleared. This provision is of course subject to certain exemptions, such as where the vegetation is dead, where removal is necessary for emergency and fire fighting related works, and for certain rural activities. This clause has been incorporated into all Victorian Planning Schemes (Victorian Planning Provisions Practice Note ‘Biodiversity’ March 2002). Victoria also has provided for the drafting and adopting of Regional Vegetation Management Plans, under s24 of the Catchment and Land Protection Act 1994. The plans can include the imposition of conditions upon clearing permits, and are subject to Ministerial approval. The implementation of such plans by Catchment Management Authority’s as part of the Catchment Strategies is discretionary. Once implemented, the plans are not enforceable but rather operate as policy documents which consent authorities are to consider when determining permit applications. The penalty for failing to comply with a planning scheme or permit under the Planning and Environment Act 1987 is a fine of up to $120 000.
Australian Capital Territory [Back to Contents] s222 Land (Planning and Environment) Act 1991 (ACT); Land clearing is not specifically regulated in the ACT. It falls under the provisions of the Land (Planning and Environment) Act 1991. Consent will be required where the clearing constitutes ‘work that would affect the landscape of the land’ (s.222).
Northern Territory [Back to Contents] Clearing in the Northern Territory is regulated by the Planning Act as it constitutes development as defined in s3. This applies chiefly to the more settled areas around Darwin. Mark Parnell Solicitor EDO (SA) Inc. |