Bushland Protection Jemilah Hallinan, Solicitor, EDO NSW Overview - - PowerPoint PPT Presentation

Bushland Protection

Jemilah Hallinan, Solicitor, EDO NSW

Overview

• 1. Rural land

– What can be done?

• 2. Urban land and e-

zones

– What can be done?

• 3. Development

assessment process

– What can be done?

• 4. Scenarios

Clearing Rural Land

The native vegetation regulatory map

https://www.lmbc.nsw.gov.au/Maps/index.html?viewer=NVRMap

Allowable activities

• to remove or reduce an imminent risk of serious personal injury or damage to property
• to obtain timber for the construction, operation or maintenance of rural infrastructure
• to collect firewood
• for exempt farm forestry
• to harvest timber that has been planted
• for a traditional Aboriginal cultural activity
• for environmental protection works
• for the construction, operation or maintenance of public infrastructure
• for the construction, operation or maintenance of gravel pits
• for the construction, operation or maintenance of telecommunications infrastructure
• for the construction, operation or maintenance of privately owned power lines
• for the maintenance of public utilities associated with the transmission of electricity
• during the course of sustainable grazing
• clearing of mulga for stock fodder
• for the construction, operation or maintenance of an airstrip
• for a firebreak in the Western Zone
• Reduce/remove imminent

risk to person/property

• Obtain timber for rural

infrastructure (fencing)

• Firewood collection
• Harvest planted timber
• Public infrastructure
• Telecommunications

infrastructure

• Privately owned power lines

Information

• No right for public to be

notified or to comment

• Public register of

certification of allowable activities (which is optional)

• LLS must report annually on

estimate of clearing as result

• f allowable activities
• https://www.lls.nsw.gov.au/

sustainable-land- management/public- registers

Code-based clearing

• was not cleared of native vegetation as at 1 January 1990
• was unlawfully cleared of native vegetation between 1 January 1990 and 25

August 2017

• contains native vegetation that was grown or preserved with the assistance of

public funds (other than funds for forestry purposes)

• contains grasslands that are not low conservation grasslands
• is subject to a private land conservation agreement
• is a ‘set aside’ under a Native Vegetation Code
• is an offset under a property vegetation plan or a set aside under the former

native vegetation laws

• is subject to an approved conservation measure that was the basis for other land

being bio-certified

• is identified as coastal wetlands or littoral rainforest
• is identified as koala habitat
• is a declared RAMSAR wetland
• is mapped as containing critically endangered species of plants or a critically

endangered ecological community

• 1. What clearing is permitted
• 2. Requirements prior to clearing
• 3. Landholding restrictions
• 4. Treatment area restrictions
• 5. Method and impact conditions
• 6. Re-categorisation of land
• 7. Set aside requirements

Information

• No right for public to be notified or to

comment

• LLS must keep public register of

aggregate information about:

• Notices of intent to rely on Code
• Certificates to certify clearing as

Code-compliant

• LLS must keep a public register of all

set-aside areas

• LLS must report annually on estimate of

clearing as result of Code-based clearing

• https://www.lls.nsw.gov.au/sustainable-

land-management/public-registers

The case to challenge the Code

“On the basis of the documents received under freedom of information laws, it appears that the Minister for the Environment failed to give proper, genuine and realistic consideration to the decision to grant concurrence for the making of the 2018 Code, and to the principles of Ecologically Sustainable Development (ESD), as required by law.”

Approvals to clear

• Clearing that is not
• therwise authorised.
• The clearing must be for a

purpose that does not require development consent under the EPA Act

• Native Vegetation Panel
• Triggers the Biodiversity

Offsets Scheme

Information

• No right for public to be

notified or to comment

• LLS must keep public register
• f all applications and

approvals (including modifications) that have been granted

• https://www.lls.nsw.gov.au/su

stainable-land- management/public-registers

What can be done?

• It is an offence to breach the land clearing

laws – enforced via the BC Act

• Authorised officers can enter land to

determine if an offence has been committed

• Stop work orders and interim protection
• rders
• Remediation orders
• Civil proceedings
• Criminal prosecutions and penalty notices

Reporting clearing to the OEH

• Take a photo if possible

(without trespassing)

• Record observations in

writing

• Note the date and time
• Call the Environment Line

131 555

• Ask for an incident number

(make a note)

• Ask to be kept informed of

any investigation/ enforcement action

• You can make reports

anonymously

Clearing in urban areas and environmental zones

Clearing in urban areas and e-zones

• Regulated by the SEPP

(Vegetation in non-rural areas)

• Some clearing requires

council permit

• Some clearing requires

approval from Native Vegetation Panel

• Some clearing is allowable

without approval

The Biodiversity Offsets Scheme Threshold

The Biodiversity Offsets Scheme Threshold

• 1. Clearing is greater than the limit for the lot size
• 2. The clearing is proposed on land that is on the

biodiversity values map

Council permit

Required where: 1. Clearing is for a purpose that doesn’t require development consent 2. Clearing is below the BOS threshold 3. The trees are covered by the Council’s Development Control Plan

Process for getting a Council permit

Application – Landholder applies to Council for a permit to clear native vegetation Evaluation – there are no evaluation criteria in the SEPP Determination (within 28 days) – Council can approve or refuse the application

Native Vegetation Panel Approval

Required where: 1. Clearing is for a purpose that doesn’t require development consent 2. Clearing exceeds the BOS threshold

Process for getting NVP approval

Application – Landholder applies to NVP for approval, and submits an Biodiversity Development Assessment Report Evaluation – NVP must consider the environmental, social and economic impacts of the proposed clearing (in accordance with ESD) Determination (within 90 days) – NVP can approve or refuse the application

Does the clearing exceed the BOS threshold? No Are the trees covered by the Council’s DCP? No No permit required Yes. Apply to Council for a permit Yes. Apply to NVP for approval Only applies where clearing is NOT for a purpose that requires development consent

Clearing that is permitted without approval

• Council or NVP is

satisfied tree is dying or dead AND not required as habitat of native animals

• Council is satisfied the

tree is a risk to human life or property

• Clearing is below the

BOS threshold and trees to be cleared are not covered by Council’s DCP

Information

• No right for public to be

notified or to comment

• No requirement for a public

register

What can be done?

• Breaching the SEPP - is it an
• ffence?
• Penalty notice?
• Criminal prosecutions?
• Broad investigative powers
• There are no orders that can be

issued by Council to comply with the SEPP

• Civil enforcement
• Encourage Council to update its

DCP quickly and push for a comprehensive coverage of trees

Development Assessment Process

The Biodiversity Offsets Scheme

• Triggered where clearing

/development will have a significant effect on threatened species

– 5 part test – BOS threshold – Areas of outstanding biodiversity value

• Impacts on biodiversity

must be assessed under the BAM

• Impacts must be offset

Offsetting

• Biodiversity credits are generated by

landholders entering Stewardship Agreements to conserve and enhance the biodiversity values of their land.

• Developers purchase and retire the

appropriate credits to offset harm to biodiversity

• Underpinned by the Biodiversity Assessment

Method - BAM

Biodiversity Development Assessment Report

• Identifies the biodiversity values of the land
• Identifies the impacts of the proposed

development or activity

• Outline the actions proposed by the proponent

to avoid or minimise the impacts of the development or activity; and

• Specifies the number and class of biodiversity

credits that are required to be retired to offset the residual impacts on biodiversity values.

Local development

• DA must be accompanied by a BDAR
• Consent authority must consider the BDAR when

assessing the DA

• If consent is granted – conditions must require the

impacts to be offset in accordance with BDAR

– Consent authority can increase or reduce the number of credits to be retired if justified on social, economic or environmental grounds

• Proponent must comply with condition before

undertaking development

• If development will have serious and irreversible

impacts on biodiversity – consent must be refused

Major projects

• DA must be accompanied by a BDAR unless

Secretary of DoPE and CEO of OEH agree the development is not likely to have any significant impact on biodiversity values

• Consent authority must consider any BDAR

when assessing the DA

• If consent is granted – consent authority MAY

require the impacts to be offset in accordance with BDAR (optional)

• Proponent must comply with any condition to
• ffset before undertaking the development
• If development will have serious and

irreversible impacts on biodiversity – this must be taken into account and further mitigation measures considered – but DA can still be approved.

Part 5 activities

• Proposals to undertake Part 5 activities

must include a BDAR or a species impact statement (proponent chooses)

• Determining authority must consider

any BDAR when assessing the proposal

• If approval is granted - determining

authority MAY attach conditions requiring the impacts to be offset in line with the BDAR

• Proponent must comply with such a

condition before commencing the activity

• Determining authority can consider

serious and irreversible impacts, amongst other considerations but no requirement to avoid activities on that basis

Serious and irreversible impacts

An impact that is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct

Meeting BOS obligations

• 1. Retire like-for-

like credits

• 2. Retire credits

under variation rules

• 3. Fund an action to

benefit the species or EC impacted

• 4. Mine site

rehabilitation

• 5. Pay $ into the

Biodiversity Conservation fund

Where the BOS does not apply

• No BDAR required – no offsetting
• Environmental assessment according to

the type of development:

– statement of environmental effects – environmental impact statement – species impact statement

Information

• Depending on type of

development:

• Community may have a right

to be notified and to comment on the application

• Development application

(supporting documents) and approvals usually available

• nline:
• Council website (DA tracker)
• Planning Panel website
• Major Projects register

What can be done?

• Appeal rights:
• Judicial review
• Merits appeal
• Breaching the EPA Act is an
• ffence
• Development without

consent

• Development in breach of

consent conditions

• Broad investigation powers
• Development Control Orders
• Criminal prosecutions and

penalty notices

• Civil enforcement

Scenarios

Case study - Trespass and damage to a Conservation Covenant Property

• Mr Jones organised the bulldozing of an area of bushland to upgrade his

power supply.

• No permission was obtained from the Blue Mountains City Council to do this.
• The bulldozing occurred down a very steep slope through open forest and
• ver rock ledges on land that is zoned E2 (Environmental Conservation). The

resulting clearance was about 50m x 3m. The upper slope section of the bulldozed clearing trespassed across the neighbouring property and damaged part of an area covered by a Conservation Agreement.

• There has been no rehabilitation of the slope. It remains bare but there is the

start of weed encroachment.

• It is highly likely that eroded sediment from the bare slope will enter a

stream at the bottom of the block and encourage weed growth in around the stream – which enters the Conservation Area.

• The neighbours have consulted the BMCC and the OEH to try and gain

assistance in encouraging Mr Jones to remediate the entire slope including the land onto which he trespassed. So far no help has been forthcoming.

• Mr Jones does not see that there are any problems with his actions.
• What, if anything, should have happened? What, if anything, can be done

now?

Clearing for power lines

• Do the rural land clearing laws apply?

– No – the land is zoned E2

• Is the clearing for “development”?

– Yes

• Is development permissible in the zone under

LEP?

– No

• Applicable SEPPs?

– SEPP (Vegetation in Non-rural Areas) – SEPP (Infrastructure) – SEPP (Exempt and Complying Development Codes)

Has the law been breached?

• Possibly.

– Breach of the EPA Act for undertaking prohibited development and for developing another person’s land without their consent….

Enforcement options

• Offence to carry out development that is prohibited

– Tier 1 monetary penalty – Penalty notice - $3000 for individual and $6000 for Corporation – Criminal prosecution (Council, within 2 years) – Civil enforcement (any person, any time)

Clearing the Conservation Area on neighbour’s property

• Offence to pick or possess any native plant within

a conservation area unless the conservation agreement authorises the act

• s. 71 National Parks and Wildlife Act 1974
• Pick a plant includes gather, pluck, cut, pull up,

destroy, poison, take, dig up, crush, trample, remove or injure the plant or any part of the plant.

Enforcement options

• Remediation Directions
• Penalty notice - $300 for individuals and

corporations

• Criminal prosecution (OEH, within 2 years)
• Civil enforcement (any person, any time)

Case study- illegal development

• The owner of a bushland acreage (E2 and E3 zones) in

the Lower Blue Mountains commenced a development

• n his property without lodging a DA with the Council
• Trucks were observed leaving the site carrying

bulldozed material – rocks, soil and vegetation

• Trucks entered the site with fill – for a road base?
• After several days of inaction, and repeated requests

from public to take action, Council issued a stop work

• rder
• What should now be occurring? What options are

available to Council

Has the law been breached?

• Possibly

– it is an offence to undertake development that needs consent without obtaining development consent, or otherwise than in accordance with the consent – It is an offence to undertake prohibited development with or without development consent.

Enforcement options

• Broad investigative powers
• Development Control Orders

– Stop Use Order – Stop Work Order

• Penalty notice
• Criminal prosecution (Council, within 2 years)
• Civil enforcement (any person, any time)

Development Control Orders

• Offence not to comply

– Criminal prosecution – Tier 1 monetary penalty – Civil enforcement

• Orders of the Court

– Court can make any order it thinks fit to remedy or restrain a breach of the Act – where the breach comprises a use of any building, work or land—restrain that use, – where the breach comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or – where the breach has the effect of altering the condition

• r state of any building, work or land—require the

reinstatement of that building, work or land to the condition or state it was in immediately before the breach was committed.

Case Study – Single trees being removed

• You notice your neighbour has engaged tree loppers to cut

down two trees on their property. The trees are large mature trees and are native eucalypts. The trees proposed to be removed are located away from your neighbour’s residence and garage, at a distance greater than 10 metres. However they are located within 45 metres of the house. The Land is zoned E2.

• The trees appear healthy and because of their size and

maturity there are plenty of hollows in the trees, which are suitable habitat for birds and possums.

• You have not been informed about a development

application on your neighbours property and you have checked the DA tracker on Council’s website and there is no recent development application approved or on exhibition for your neighbours property.

Clearing single trees

• Do the rural land clearing laws apply?

– No, the land is E-zoned

• Is the clearing for “development”?

– Arguably but not entirely clear – If so, it is prohibited in the zone

• Does the SEPP (Vegetation in Non-rural Areas) apply?

– Only if the clearing is not development – A permit from Council would be required

• Any other authority to clear?

– 10/50 Bushfire Code – doesn’t apply as trees are not within 10m of the home

Clearing under the SEPP (Vegetation in Non-Rural Areas)

• Neighbour would most likely require a permit from

Council - providing the trees are covered by the DCP.

• If trees are not covered by DCP, no permit required.

However, a Biodiversity Conservation Licence may be required under the Biodiversity Conservation Act.

• Contact the Council and ask if a permit has been

applied for.

Has the law been breached?

• Possibly – may have breached the Vegetation

SEPP

• Enforcement options

– Criminal prosecution/penalty notices? (Council) – Civil enforcement (any person, any time)

Case Study – Clearing bushland for subdivision

• DA to subdivide 52 hectare vacant lot into 22 lots (20 x 2ha

and 2 x 6ha residential lots).

• Proposed building envelopes on each lot have been

identified.

• The land bush fire prone so large bushfire asset protection

zones (APZs) – will be required.

• The land is covered in untouched native bushland, including

large mature trees as well as native shrubs and grasses .

• Rare plants and vegetation communities are on the site,

and also the Red Crown Toadlet – a threatened species.

• The land is partly zoned E4 Environmental Living with the

remainder zoned E2 Environmental Protection.

Can the development be approved?

• Both the E2 and E4 zones allow dwelling houses with

consent.

• Cl. 4.1E of BM LEP 2015

– Development consent must not be granted to the subdivision of land to which this clause applies if any of the lots resulting from the subdivision will

• nly contain land in Zone E2 Environmental

Conservation unless any such lot is to be provided for a public reserve, public road or other public purpose.

Clearing for subdivisions

• Likely to trigger the Biodiversity Offsets Scheme

– 5 Part Test – BOS threshold

• Biodiversity Development Assessment Report

– Impacts must be offset – Serious and irreversible impacts mean the development must be refused