It’s been almost two years since the NSW Government introduced a new scheme for regulating land clearing and biodiversity in NSW. While the business of tree clearing has continued apace under self-assessed codes and a new Vegetation SEPP, fundamentally important parts of the scheme are still missing. This EDO NSW series of legal updates looks at how the 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. The second update looks at elements of the new scheme that are missing or lack clarity for tree clearing in urban areas and e-zones. This third update looks at compliance and enforcement of new clearing laws.
By Jemilah Hallinan, Outreach Director EDO NSW, and Gabrielle Ho, Policy and Law Reform Solicitor
17 July 2019
Land clearing in rural NSW has been regulated under Part 5A of the Local Land Services Act 2013 (LLS Act) for almost two years now. In urban areas and environmental zones, the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) applies. As with all regulatory regimes, appropriate monitoring and enforcement is vital to ensuring the aims and objectives of the laws are being met.
Clearing in rural areas
The LLS Act sets out offence provisions, defences, and a range of enforcement powers and penalties.
In short, it is an offence to clear native vegetation on regulated rural land unless the clearing is authorised under the LLS Act or other legislation. Clearing will be authorised under the LLS Act if it is an allowable activity, code-compliant, or subject to an approval issued by the Native Vegetation Panel. Clearing can also be authorised as private native forestry or under other legislation such as planning laws or the 10/50 Vegetation Clearing Code.
The Office of Environment and Heritage (OEH) is the regulator responsible for the enforcement of the rural land clearing laws. Under recent government changes, the OEH will be disbanded and the regulator will be the Department of Planning, Industry and Environment. We will continue to refer to OEH as the regulator in this legal update.
Clearing in breach of the rural land clearing laws can attract significant penalties. For example, if the offence was committed intentionally and caused, or was likely to cause, significant harm to the environment, the maximum penalty is $5 million for a corporation and $1 million for an individual. Otherwise, the maximum penalty is $2 million for a corporation and $500,000 for an individual.
These penalties can only be imposed by a court if the regulator is able to prove the offence beyond a reasonable doubt. This can be difficult to do, so it is more common for regulators to issue Penalty Infringement Notices (PINs) for less serious offences. While much more straightforward to impose, these fines are for amounts significantly lower than the maximum monetary penalties set by the legislation. For example, a PIN cannot exceed $15,000 for a corporation or $5,000 for an individual.
In addition to criminal proceedings and PINs, there are a range of administrative orders that can be issued by the regulator in order to prevent or remedy unlawful clearing. These include stop work orders, remediation orders and interim protection orders. Non-compliance with an order is itself an offence which attracts significant monetary penalties.
Finally, the OEH can commence civil enforcement proceedings in the NSW Land and Environment Court (LEC) in order to remedy or restrain a breach of the rural land clearing laws. If the LEC is satisfied, on the balance of probabilities, that the alleged breach has occurred, it can make whatever orders it thinks fit. For example, it can order the clearing to stop and for any environmental harm to be remediated.
If the OEH fails to take appropriate enforcement action, any person is able to commence civil enforcement proceeding in the LEC. This is a useful safety net but it is obviously better if the regulator enforces the law. It is the regulator that has the power to enter premises for the purpose of investigating whether the law has been breached and gathering evidence to support criminal or civil legal action. It can be extremely difficult for a member of the public to determine whether observed clearing is lawful because the native vegetation regulatory map is still not complete and the public registers that record authorised clearing do not, for the most part, identify the relevant property. This lack of information will make civil enforcement by the public extremely difficult.
The native vegetation regulatory map
The rural land clearing laws are meant to be underpinned by the native vegetation regulatory map. The map is intended to categorise land to identify where and how the clearing rules apply, and is therefore critical to any compliance regime.
The absence of a completed publicly available regulatory map is a compliance nightmare because members of the public, who have traditionally played an important monitoring role with regards to native vegetation compliance, now have no way of knowing how particular land is mapped and whether observed clearing is lawful.
This places a heavier burden on the regulator to monitor compliance and undermines community confidence in the regulatory regime.
Access to information
Since the new rural land clearing laws were introduced, community involvement in monitoring and reporting potentially unlawful land clearing actions has become more difficult.
Local Land Services maintains public registers of authorised rural land clearing which include aggregate information. However, with the exception of clearing authorised by the Native Vegetation Panel, there is no publicly available information about where that authorised clearing can be undertaken. A lack of publicly available information makes it unnecessarily difficult for the public to know when an incident should be reported to the OEH’s Environment Line.
At the EDO, we have received numerous phone calls in relation to rural land clearing since Part 5A of the LLS Act commenced, but without access to information about where and how clearing has been authorised it is virtually impossible to advise clients as to whether clearing is likely to be lawful.
It is also difficult to know what, if any, monitoring and enforcement action is being undertaken by the OEH. We have developed a Reporting Rural Land Clearing form to record information from the public about observed clearing and reports made to the OEH Environment Line. The information collected will inform our law reform and compliance work. If you have made a report to the OEH Environment Line or are planning to do so, please consider recording the information using our form.
Clearing in urban areas and environmental zones
As with the rural land clearing laws, there is a suite of enforcement options available to the regulator with regards to clearing under the Vegetation SEPP. The Vegetation SEPP sets up a regime whereby certain clearing below the Biodiversity Offsets Scheme Threshold (BOS Threshold) requires a permit from the Council and clearing of native vegetation above the BOS Threshold requires an approval from the Native Vegetation Panel.
The regulator for clearing under the Vegetation SEPP is the local council for clearing that requires a permit. For clearing that requires an approval from the Native Vegetation Panel, the regulator is likely to be the Department of Planning, Industry and Environment.
The Vegetation SEPP does not contain any offence provisions; these are contained in the Environmental Planning and Assessment Act 1979 (EP&A Act). Clearing vegetation is “development” for the purpose of the EP&A Act.
There is a clear prohibition in the Vegetation SEPP on clearing vegetation that requires a permit or approval unless such an authorisation has been obtained and complied with. It is the view of the NSW Government that clearing in the absence of a permit or approval (where such an authorisation is required under the Vegetation SEPP) is “prohibited development” for the purpose of the EP&A Act.
Under the EP&A Act, it is an offence to carry out development that is prohibited. This offence attracts a Tier 1 monetary penalty in circumstances where the offence was committed intentionally and caused or was likely to cause significant harm to the environment, or caused the death of or serious injury or illness to a person. A Tier 1 maximum penalty is up to $5 million for a corporation and $1 million for an individual. If the circumstances do not warrant a Tier 1 monetary penalty, a Tier 2 maximum penalty applies, which is up to $2 million for a corporation and $500,000 for an individual.
These penalties can only be imposed by a court that is satisfied, beyond a reasonable doubt, that the offence has been committed. In addition to, or instead of, the maximum monetary penalty, the court dealing with the offence can impose a range of other penalties, including an order to make good any resulting damage and to plant new vegetation and maintain that vegetation to a mature growth.
As with the rural land clearing laws, it is likely that criminal prosecutions will be used sparingly by the regulator. PINs are a much quicker and easier way to penalise offenders for unlawful clearing and can be issued to anyone undertaking prohibited development. The maximum monetary penalty that can be imposed under a PIN of this kind is $7,000 for a corporation and $3,000 for an individual.
It may also be possible for the regulator to issue an administrative order to address unlawful clearing. Under the EP&A Act, these orders are known as Development Control Orders and the relevant order is known as Order 1 – which can be issued in circumstances where the premises are being used for a prohibited purpose and can require the recipient to stop conducting the activity on the premises.
Finally, any person can commence civil enforcement proceedings to remedy or restrain a breach of the EP&A Act (which includes breaches of environmental planning instruments made under the Act, such as the Vegetation SEPP) in the LEC.
If the LEC is satisfied, on the balance of probabilities, that the alleged breach has occurred, it can make whatever orders it thinks fit. In circumstances where the regulator fails to act, members of the public can bring civil enforcement proceedings.
As with rural land clearing, it can be very challenging for members of the community to gather sufficient evidence of a breach of the Vegetation SEPP without the broad investigation powers of the regulator. Neither the local council or the Native Vegetation Panel is required to keep a public register of the clearing it authorises under the Vegetation SEPP. There is therefore no way for the community to check whether observed clearing is authorised or being undertaken in compliance with the authorisation.
Compliance and enforcement action
As discussed in Part 2 of this series, many councils have not yet updated their DCPs to reflect the Vegetation SEPP, which creates a regulatory gap. For those that have, it is unclear at this stage what, if any, compliance action is being taken to address breaches of the Vegetation SEPP. We also don’t know whether compliance action is being undertaken in relation to clearing approvals issued by the Native Vegetation Panel under the Vegetation SEPP.
There is a similar lack of information about compliance activity in relation to the rural land clearing laws. However, a recent Auditor-General’s report provides some useful insights. The objective of the report was to assess whether the clearing of native vegetation in rural areas is effectively regulated and managed by the OEH and LLS. The report concluded that the clearing of vegetation on rural land is not effectively regulated and managed because the processes in place to support the regulatory framework are weak and there is no evidence–based assurance that clearing of native vegetation is being carried out in accordance with approvals. There are several reasons for this.
Firstly, the report found approximately 200,000 hectares of native vegetation has been approved by the LLS for thinning or clearing under certificates since the Native Vegetation Code came into effect and around 20,000 hectares has been set aside for conservation management in relation to some of those clearing authorisations. Yet the LLS undertakes only limited monitoring of whether landholders are meeting the requirements of the Native Vegetation Code, including whether set-asides are being established and managed appropriately.
Secondly, the report found there are lengthy delays in identifying breaches because the OEH must compare satellite imagery against clearing authorisations and exemptions in order to identify potentially unlawful clearing. There is an inherent lag time in this process, which can be up to two years. This is clearly unacceptable given the serious environmental harm that can result from unlawful clearing. The report notes that OEH is in the process of developing an early detection system for unlawful clearing.
Thirdly, the report found that clearing of woody vegetation is increasing and so is the extent of unexplained clearing, which has almost doubled from 5,600 hectares in 2013-14 to 10,300 hectares in 2016-17. Not all unexplained clearing is unlawful, as there are several ways for rural land clearing to be authorised under the LLS Act and some clearing does not need to be notified to any regulatory authority. However, this makes the job of distinguishing the lawful from the unlawful clearing extremely challenging and time consuming for the regulator.
Finally, the report found that although the OEH has resources, policies and guidance to support its compliance and enforcement activities, there is little evidence of effective enforcement activity being undertaken in response to unlawful land clearing. The report noted that around 1,000 instances of unexplained land clearing are identified by the OEH each year, with around 300 investigations commenced. However, this does not necessarily translate into compliance action. The report notes that each year only two or three prosecutions for unlawful clearing take place (and OEH is still completing prosecutions commenced under the now repealed Native Vegetation Act 2003). In addition, three to five remediation orders and around 10 penalty notices are issued each year. The vast majority of compliance action appears to be by way of advisory and warning letters. This approach may be justified in the early days of a new regulatory regime as landholders adjust to the new legislation and particularly given that recent research commissioned by the LLS revealed only around 50% of landholders were aware of the Native Vegetation Code and most were not aware of how it worked. However, it is abundantly clear that monitoring and compliance activity needs to improve substantially in order to ensure the effective management and regulation of native vegetation on rural land moving forward.
Overall, there is a wide range of enforcement options available to the regulator under the rural land clearing laws and the Vegetation SEPP. The public is also empowered to bring civil enforcement proceedings, which is good in theory. However, ascertaining whether enforcement provisions are effective in practice is a difficult task due to the regulatory gaps in the current system (such as the missing detail in the native vegetation regulatory map) and also the lack of comprehensive publicly available information about clearing (such as a lack of public registers in the case of the Vegetation SEPP or a lack of detail in the public registers about where clearing has been authorised in the case of the LLS Act).
There is also a concerning lack of transparency in terms of what clearing has been authorised, which is creating unnecessary confusion and anxiety in the community. This problem can be easily fixed by requiring public registers of all clearing authorised under the LLS Act and Vegetation SEPP that identifies the extent of the authorised clearing, the relevant property, the relevant authorisation and the regulator.
What we do know is that despite over 500 calls to the OEH environment line and around 1,000 instances of unexplained clearing being identified each year, compliance action by the OEH is remarkably sparse and this has led the Auditor-General to conclude that native vegetation, on rural land at least, is not being effectively regulated at the present time.
Read Part 1 of this series here: The missing pieces
Read Part 2 here: Clearing in urban areas and Ezones