By Senior Solicitor Cerin Loane
The NSW Government has recently updated rules to allow landholders to clear vegetation for bushfire protection, and for routine land management activities in certain environment zones. On their face, these changes may seem innocuous, but they continue an ongoing pattern of allowing increased vegetation clearing with limited environmental assessment or oversight, at a time when existing laws are failing, land clearing rates continue to rise, and biodiversity remains in decline.
The new changes, which include a new Rural Boundary Clearing Code, and amendments to the Vegetation in Non-Rural Areas SEPP, are explained below.
New Rural Boundary Clearing Code
In September 2021 a new Rural Boundary Clearing Code came into force.
Provisions to allow the making of a new Rural Boundary Clearing Code were added to the Rural Fires Act 1997 following the 2019-2020 bushfire season (see Bushfires Legislation Amendment Act 2020).
The NSW Government has said that these new provisions and the Code respond to Recommendation 28 of the NSW Bushfire Inquiry which recommended the Government …“review vegetation clearing policies to ensure that the processes are clear and easy to navigate for the community, and that they enable appropriate bush fire risk management by individual landowners without undue cost or complexity”.
The Rural Boundary Clearing Code allows landowners to clear certain vegetation on their property within 25 metres of their property boundary (i.e. the boundary of a single holding, including holdings made up of multiple lots), without a permit or approval, if undertaken in accordance with the Code. The Rural Boundary Clearing Code does not provide approval but rather a person is not guilty of an offence for clearing vegetation in accordance with the Code. The Rural Boundary Clearing Code overrides environmental assessment and approval requirements in the Biodiversity Conservation Act 2016 and the Environmental Planning and Assessment Act 1979.
The NSW Bushfire Inquiry did not explicitly recommend code-based clearing of vegetation within 25m of rural boundaries.
When the changes were first proposed, EDO raised concerns that “the proposed code will facilitate clearing of vegetation without the need for robust environmental assessment or approval and without a clear framework for monitoring and oversight, in some cases overriding existing environmental protections.”
Conservation scientists have expressed concern that the new Code will have a devastating impact on wildlife.
With no clear obligations to monitor or report on clearing under the Rural Boundary Clearing Code, it is unclear how the implementation of the Code, including its cumulative impacts on important landscapes and wildlife in terms of both local impacts and impacts on connectivity and corridors, or its role in providing increased protections from bushfires, will be assessed.
The following are key elements of the Rural Boundary Clearing Code:
- The Code applies to land within a rural zone (RU1, RU2, RU3, RU4, RU5, RU6) identified on the Boundary Clearing Code Vegetation Map. However, the Code does not apply in certain Sydney local government areas, unless the Council requests to have the Code apply to their local government area. Certain exclusions and restrictions also apply (see below).
- Any clearing must be undertaken in accordance with the Rural Boundary Clearing Code, on the day that the clearing is undertaken. Landholders must use the online Rural Boundary Clearing Tool to conduct a search of their property (to determine how the Code applies) and maintain search results from the day that the clearing is undertaken. Landowners are required to provide evidence of the online search tool results if requested by the relevant regulatory authority.
- Part 6 of the Rural Boundary Clearing Code contains exclusions and restrictions on vegetation clearing, for example:
- Three categories of vegetation cannot be cleared (6.2(1)), namely:
- Parcels containing specific vegetation, including (but not limited to) coastal wetlands, littoral rainforests, core koala habitat, areas of outstanding biodiversity value, vegetation within 100 metres of the coastline or estuaries, and critically endangered ecological communities. (Note – certain temporary exemptions exist areas impacted by the 2019-2020 bushfires)
- World Heritage; and vegetation of high environmental significance identified as part of the bio-certification of the Sydney Region Growth Centres (6.2(2))
- Mangroves and saltmarsh (6.2(3)).
- There are restrictions on the use of herbicide (6.3) and the use of fire for clearing (6.4).
- There are requirements for managing soil erosion and landslip risks (6.5).
- Riparian buffer zones are protected (6.6).
- There are provisions relating to the protection of Aboriginal modified trees and other cultural heritage (6.7) and Aboriginal heritage (6.8).
- Clearing cannot be inconsistent with certain legal obligations to protect vegetation, such as conservation agreements, or property vegetation plans (6.9).
- Landowners have a duty of care to avoid cruelty and harm to native, introduced or domestic animals when clearing trees and vegetation in accordance with the Rural Boundary Clearing Code. Landowners are not exempt from prosecution under the Biodiversity Conservation Act 2016 for harm to a protected animal, or for deliberate cruelty to animals under the Prevention of Cruelty to Animals Act 1979 (6.10).
- Three categories of vegetation cannot be cleared (6.2(1)), namely:
- The Rural Boundary Clearing Code does not override Commonwealth laws, and therefore the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 will still apply to any activities
Further information about the Rural Boundary Clearing Code is available at on the RFS website.
Amendments to State Environment Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation in Non-Rural Areas SEPP)
In September 2021, the NSW Government made amendments to State Environment Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation in Non-Rural Areas SEPP) to establish permanent arrangements for clearing associated with routine agricultural activities in E2, E3 and E4, and R5 zones – these are environmental (E2, E3 and E4) and large lot rural residential zones (R5) with recognised environmental values (as per the Standard Instrument – Principal Local Environment Plan). These changes will commence on 18 December 2021. Until then, transitional arrangements, that allow certain activities that had been allowed under the Native Vegetation Act to continue, remain in place.
The permanent rules reflect similar arrangements for clearing associated with routine agricultural activities (such as maintaining fences, maintaining infrastructure, and environmental protection works) on rural land under the Local Land Services Act 2013 (LLS Act), specifically activities that can be undertaken on sensitive and vulnerable land under LLS Act.
The permanent arrangements provide that:
- The allowable activities can be carried out on land zoned E2, E3, E4 and R5 in council areas included on a new land application map for allowable activities made under the SEPP. There are slightly different rules for E2 zones, and for E3, E4 and R5 zones
- The ‘allowable activities’ are only available on land where the continuing primary use is for primary production.
- The provisions include a threshold test that is to be undertaken by the landholder to determine if the land has an existing and continuing agricultural use (e.g. the cultivation of land for the purpose of selling produce, the maintenance of animals for the purpose of selling them or their produce, commercial fishing and bee keeping).
While we do not oppose exemptions for activities that are genuinely minimal-impact routine activities necessary for productive farms, we have concerns about exemptions being used to justify significant amounts of clearing, the unknown cumulative impacts of clearing under the exemptions if misused, and the use of exemptions in environmentally sensitive areas, such as environment zones.
There are no mechanisms to monitor and record the amount of clearing that is undertaken as allowable activities, and it is difficult to ensure that limitations on clearing for allowable activities are being complied with.
Alarmingly, the Government has also flagged that it is considering allowing some higher risk clearing activities in the E3, E4 and R5 zones. In particular, the government is considering allowing the removal of invasive native species and native vegetation thinning in these zones, as allowable activities, once guidelines have been developed.
These activities are not ‘allowable activities’ in rural areas; but are rather regulated by the Land Management (Native Vegetation) Code 2018 (Clearing Code). Notably, clearing under the Clearing Code, including the removal of invasive native species and native vegetation thinning is not allowed on land designated as Category 2-sensitive regulated land. Further, both the Natural Resources Commission and NSW Audit Office have raised concerns about the extent of clearing of invasive native species and native vegetation thinning already happening under the Clearing Code and the risk this poses to biodiversity state-wide; and has recommended that these sections of the Clearing Code be immediately reviewed (see EDO’s report Restoring the balance in NSW native vegetation law. Despite this there have been no changes made to the Clearing Code.
In this context, the proposal to allow high risk activities such as clearing of invasive native species and native vegetation thinning in certain environment zones under the Vegetation in Non-Rural Areas SEPP is unjustified.
Other changes were also made to the SEPP include amendments to clarify that:
- Councils can take enforcement action on clearing that is inconsistent with the provisions of the SEPP (see cl 8(6) of the SEPP). This important change clarifies ambiguity with the previous drafting of the SEPP.
- A permit or approval is not required if the council is satisfied clearing is for a traditional Aboriginal cultural activity, other than a commercial cultural activity (see cl 8(3)(b)).
- Clearing of vegetation in a non-rural area of the State is permitted without development consent if the clearing is not ancillary to the carrying out of other development, and does not require a permit or approval; and the vegetation is not a heritage item or an Aboriginal object, or located in a heritage conservation area or Aboriginal place of heritage significance (see clause 8A).
Minor amendments were also made to terminology (e.g. permit, approval etc.) and to make redraft certain provisions more clearly (without changing intent.
The broader context
The new Rural Boundary Clearing Code and changes to the Vegetation in Non-Rural Areas SEPP have been made despite ongoing criticism of the government’s broader land management and biodiversity conservation framework, which has resulted in a return to broadscale land clearing across the State and put biodiversity at further risk. In particular, independent reports by the NSW Audit Office and the NSW Natural Resources Commission have highlighted the failings of the system.
The Government has failed to publicly undertake a three-year review of the land management and biodiversity and conservation framework – something it promised to do when it introduced the current framework over four years ago.
It has also failed to effectively resolve tensions around koala planning policies, which has seen important koala habitat put at risk – see EDO’s earlier update here.
And these failings must now also be considered in the context of a changed landscape following the catastrophic 2019-2020 bushfire season. In NSW, bushfires burnt over 5.52 million hectares of land. The fire ground in NSW covered approximately 7% of the state, including 2.7 million hectares in national parks (37% of the NSW park system), and that the habitat of more than 293 threatened animals and 680 threatened plants has been impacted.
The current framework has been shown time and again to be flawed, yet rather than wholescale reform aimed at strengthening protections for our valuable native vegetation, the Government continues to introduce incremental, ad hoc changes to further facilitate land clearing without appropriate levels of environmental assessment and oversight, meaning the phrase ‘death by a thousand cuts’ may soon no longer be metaphorical.
For further information about the failures of the current land management framework, see EDO’s 2020 report Restoring the balance in NSW native vegetation law – Solutions for healthy, resilient and productive landscapes, available here.