Update: The Code was declared invalid by the Land and Environment Court on 9 March 2018. The NSW Government immediately reintroduced the Code without amendment.
The Nature Conservation Council of NSW, represented by EDO NSW, commenced proceedings in November 2017 in the Land and Environment Court to challenge the decision of the Minister for Primary Industries to make the Land Management (Native Vegetation) Code 2017 (the Code) under the Local Land Services Act 2013 (NSW).
The decision to make the Code was made against the backdrop of the NSW Government’s 2016 biodiversity and land clearing reforms, which saw the introduction of, amongst other things, the Biodiversity Conservation Act 2016 (NSW) and the Local Land Services Amendment Act 2016 (NSW). The Local Land Services Amendment Act amended the Local Land Services Act 2013 and inserted a provision which allowed the Minister for Primary Industries to make the Code. The Code purportedly came into force on 25 August 2017, and allows landholders to carry out significant amounts of self-assessed clearing of native vegetation without further approval or environmental assessment. The Code was intended to be released with native vegetation regulatory maps to assist landholders to identify where clearing of native vegetation on rural land can and cannot occur, however the release of these maps is significantly delayed and landholders are required to self-assess whether the Code applies to their land.
The Nature Conservation Council of NSW is arguing that the Code is invalid because the Minister for Primary Industries did not obtain the agreement of the Minister for the Environment before the Code was made, and that both the Minister for Primary Industries and the Minister for the Environment failed to have regard to certain principles of ecologically sustainable development, including the precautionary principle, inter-generational equity and the conservation of biological diversity and ecological integrity, when making, or giving concurrence to, the Code.
Section 60T of the Local Land Services Act, under which the Code is made, makes it a requirement for the Minister for Primary Industries to obtain the concurrence of the Minister for the Environment before making the Code, and places a positive obligation upon both Ministers to have regard to the principles of ecologically sustainable development.
Proper consideration of the principles of ecologically sustainable development is particularly important in this case for the following reasons:
- clearing of native vegetation is listed by the NSW Scientific Committee as a Key Threatening Process under the Biodiversity Conservation Act 2016, yet the Code allows self-assessed broadscale clearing across NSW in the absence of any assessment of the likely cumulative impact of clearing under the Code on biodiversity or land or water resources;
- there is a lack of full scientific certainty about the effect of the Code in the absence of native vegetation regulatory maps;
- the Code switches off requirements to carry out environmental assessments for clearing; and
- the Code provides a defence to offences under the Biodiversity Conservation Act 2016 in relation to the picking of threatened species, threatened ecological communities or protected plants, damage to a declared area of outstanding biodiversity value or damage to the habitat of a threatened species or threatened ecological community, if the person charged can establish that the clearing was authorised by the Code.
This is the first case to test the new provision of the Local Land Services Act which allowed for the making of the Code.
We are grateful to barristers Jeremy Kirk SC and David Hume for their assistance in this matter.
Meg Lamb, Solicitor for EDO NSW, has carriage of this matter for NCC NSW, and our Principal Solicitor, Elaine Johnson, is the solicitor on record.