It’s been almost two years since the NSW Government introduced a new scheme for regulating land clearing and biodiversity in NSW. This series looks at how these laws are being implemented and the regulatory gaps that are putting our wildlife and healthy sustainable landscapes at risk.
Our first update looked at clearing in rural areas and outlined the fundamentally important parts of the scheme that are still missing even while tree clearing has continued apace under self-assessed codes. This second update looks at elements of the new scheme that are missing or lack clarity for tree clearing in urban areas and e-zones. Part 3 looks at compliance and enforcement.
By Gabrielle Ho, Policy and Law Reform Solicitor, and Rachel Walmsley, Director Policy and Law Reform
Background to regulation of tree clearing in non-rural areas
As part of the suite of Land Management and Biodiversity Conservation Reforms that commenced in August 2017, the NSW Government introduced the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) to regulate vegetation clearing that is not for a purpose that needs development consent in urban areas and e-zones. This is a different scheme from that which aims to regulate native vegetation clearing on rural land.
Vegetation in urban areas contributes to urban biodiversity and landscape amenity and also helps to reduce urban heat island effects. The inappropriate clearing of vegetation for urban development can undermine these benefits. E-zones are areas of vegetation with high ecological, scientific, cultural or aesthetic values.
The Vegetation SEPP identifies when clearing will trigger the new Biodiversity Offsets Scheme (BOS), which is set out in the Biodiversity Conservation Act 2016 (BC Act). Under the new scheme, council permits may be required for clearing that falls below the Biodiversity Offsets Scheme Threshold (BOS Threshold) and any clearing that exceeds the BOS Threshold will be assessed and approved by the independent Native Vegetation Panel (Panel).
This sounds great in principle, but after almost two years the scheme continues to lack clarity and detail around a number of key elements. Clearing actions falling below the BOS Threshold are unevenly regulated between local Councils, there is very little publicly available information about assessments by a Native Vegetation Panel for clearing that exceeds the BOS Threshold, and there are limited mechanisms to account for ‘stacking’ of clearing actions or the cumulative impacts of clearing at a landscape scale. This means the capacity for the scheme to provide a robust and transparent system for regulating vegetation clearing in non-rural areas is undermined.
This article explains the key aspects of the scheme and examines the elements that are missing or lack clarity.
Biodiversity Offsets Scheme Threshold
There are two ways native vegetation clearing can exceed the BOS Threshold and trigger the requirements of the BOS:
- If the clearing is proposed on land included on the Biodiversity Values Map; or
- If the area exceeds the area clearing threshold.
Biodiversity Values Map
The Biodiversity Values Map identifies land with high biodiversity values such as coastal wetlands and littoral rainforests, core koala habitat, Ramsar wetlands, old growth forests, rainforests or a declared area of outstanding biodiversity value. Only landholders and councils can request a Biodiversity Values Map Explanation Report for a description of the biodiversity values applicable to a landholding.
Area Clearing Threshold
The Area Clearing Threshold specifies maximum clearing areas that are permitted without triggering the BOS.
The Biodiversity Conservation Regulation 2017 provides some more information about calculating clearing areas:
- If vegetation comprises a mix of native and non-native vegetation, the clearing area is the total area to be cleared.
- If clearing involves clearing of a number of patches across multiple lots that are owned or operated under a single ownership, the clearing area is the total cumulative area cleared.
- In the case of a subdivision, the clearing area includes all future clearing likely to be required after the land is subdivided.
Landholders can work out whether clearing exceeds the BOS Threshold by using the Biodiversity Values Map and Threshold Tool (BMAT) or mapping clearing areas manually. The Office of Environment and Heritage published a guide to the BMAT in November 2018. The Office of Local Government has also published an online questionnaire to help landholders identify biodiversity assessment and approval requirements.
Clearing that does not exceed the BOS Threshold
For clearing that falls below the BOS Threshold, landholders are required to obtain a council permit only if the vegetation is covered by a Council’s Development Control Plan (DCP). Councils are not required to update DCPs to identify vegetation requiring a permit and at this stage, many Councils haven’t done so. Consequently, some vegetation clearing is falling through regulatory cracks where a Council’s DCP doesn’t identify vegetation requiring a clearing permit.
The Vegetation SEPP doesn’t specify any particular evaluation criteria for clearing below the BOS Threshold so it will be up to a Council to decide how they assess applications for clearing. An entirely discretionary decision-making process can be problematic because it provides no certainty for applicants, neighbours and local communities alike. Although Councils can choose to develop comprehensive policies for determining vegetation clearing permits, there is no obligation to do so. Councils can also choose to limit the types of vegetation requiring a clearing permit in a DCP. This means that vegetation clearing in non-rural areas may be unevenly and inconsistently regulated across the State.
Another problem is that permits can be applied for and issued behind closed doors. The Vegetation SEPP does not specify any requirements to notify the public of applications to clear or to seek comments from the public, and there is no requirement to maintain a public register. Without requirements to make information about clearing actions publicly available there is no way for the public to keep track of what vegetation is being cleared.
Clearing that exceeds the BOS Threshold
Clearing actions that exceed the BOS Threshold must be assessed and authorised by the the Panel. Certain types of tree clearing actions in rural areas are also required to be assessed by the Panel. Applications for Panel approval must include a biodiversity development assessment report which is prepared by an accredited assessor and identifies the biodiversity values of the area to be cleared and the type and number of biodiversity credits that will be required to offset those values. The Panel must consider the environmental, social and economic impacts of the proposed clearing and must refuse any applications that are likely to have serious and irreversible impacts on biodiversity values.
As explained in Part 1 of this series, there is very little publicly available information about the Panel’s existence and current activities. There are no requirements for public notification or consultation. The community has no way of knowing whether clearing in urban areas has been authorised by the Panel as there are no requirements to maintain a register of clearing applications and approvals by the Panel. (Although any biodiversity credits required to be retired as part of a clearing approval will be recorded in a transactions register).This is significant considering that there is a requirement to maintain a register of applications and approvals by the Panel for native vegetation clearing in rural areas.
A lack of information about assessments by the Panel creates uncertainty over how high biodiversity value native vegetation and large areas of native vegetation in urban areas and e-zones is regulated.
‘Stacking’ and cumulative impacts?
The Vegetation SEPP does not contain a clear mechanism to account for ‘stacking’ of multiple clearing actions over time, nor does it specify any mechanism for systematic review of tree removal permits to reduce and monitor the cumulative impacts of clearing across urban areas or e-zones.
For clearing below the BOS Threshold that requires a permit, Councils can request that applicants provide more information about previous clearing in the surrounding area but there is no requirement to do so. For clearing above the BOS Threshold, the Panel must consider any future clearing that has been authorised or notified but there is no obligation to consider previous clearing actions.
Without a specific mechanism for reviewing cumulative impacts of clearing permitted under the Vegetation SEPP, impacts of clearing actions on biodiversity and amenity at a landscape scale are difficult to evaluate.
The lack of detail in the biodiversity values map, uneven regulation of clearing actions falling below the BOS Threshold, the unconfirmed operation of the Native Vegetation Panel and the lack of clear mechanisms to account for stacking and impacts of clearing at a landscape scale mean that there is still a lot of uncertainty over how vegetation in non-rural areas is regulated under the new scheme. A lack of publicly available information makes it frustrating for applicants and the community alike to know how the scheme operates.
Unclear and incomplete regulatory regimes can make effective compliance and enforcement difficult, if not impossible. In the last of this series we will examine compliance and enforcement of the new laws.
 Biodiversity Conservation Regulation 2017 cl 7.1 – 7.3.
 Vegetation SEPP cl 14.
 Local Land Services Act 2013 s 60ZO(1)(d)-(e).
 Vegetation SEPP cl 11(2)
 Vegetation SEPP cl 14(5)(c).