NSW Government Re-Releases Land Clearing Code After Losing Court Case

Tuesday 13 March 2018 @ 9.45 a.m. | Legal Research

Last Friday, 9 March 2018, the NSW Government released the Land Management (Native Vegetation) Code 2018 (the “Code”). This Code remakes the Land Management (Native Vegetation) Code 2017 (the “2017 Code”) after the NSW Land and Environment Court declared the 2017 Code to be “invalid and of no effect”.

Mr David Witherdin, Chief Executive Officer of Local Land Services, discussed the re-made Code in a media release on 9 March 2018:

“The re-made Code is identical to the previous one and is an integral part of the new land management framework which gives landowners the tools and certainty they need.

The Code fulfils the recommendations of the Independent Biodiversity Legislation Review Panel and is the result of comprehensive public engagement involving more than 1000 stakeholders.

The Code delivers the right balance that supports a productive agricultural sector and a healthy environment.”

Biodiversity Legislation Review

The final report of the Independent Biodiversity Legislation Review Panel was presented to the Government on 18 December 2014. The report contained a number of recommendations with the aim of improving the legislative and policy framework for native vegetation and biodiversity conservation management in NSW. Some recommendations made by the Report were (pp iv-v):

This report:

Proposes a new ‘Biodiversity Conservation Act’, with the goal to maintain a healthy, productive and resilient environment for the greatest wellbeing of the community, now and into the future, consistent with the principles of ecologically sustainable development.
Recommends focusing on conserving biodiversity at a bioregional or state scale.
Proposes a vision of landscape scale conservation and productivity through a connected network of public and private land which meets national and international obligations – and is in line with international best practice – and is feasible, achievable and affordable.
Recommends repealing the Native Vegetation Act 2003. The Act has not met expectations as a central pillar of biodiversity conservation in NSW. It has been contentious because of difficulties in implementation and the inequitable distribution of the costs involved, in particular sectors and in particular regions of the state.
Modernises and streamlines the regulation of human-wildlife interactions, particularly in recognition of the increasing popularity of keeping native animals (especially birds and reptiles) as pets, while maintaining the general provisions restricting harm to, or trade in, native wildlife.
Recommends the development and use of a comprehensive system for monitoring and reporting the condition (extent and quality) of biodiversity in NSW.

Following the report, the NSW Government committed to implementing all 43 recommendations, releasing a draft package of land management and biodiversity conservation reforms on 3 May 2016. Legislation which has resulted from this package includes the Biodiversity Conservation Act 2016 and the Local Land Services Amendment Act 2016.

The Code

The aims of the Code are outlined in regulation 3:

The aims of this Code are to:

authorise clearing of native vegetation on Category 2- regulated land,
provide for establishment and management of set aside areas, and
authorise re-categorisation of land.

The Code is divided into a number of parts, all of which are outlined in regulation 5 of the Code:

Part 2, Invasive Native Species – permits clearing of native vegetation that has been identified as an invasive native species, and permits certain agricultural activities in treatment areas, in certain circumstances,
Part 3, Pasture Expansion – permits a range of clearing of woody native vegetation, by uniform thinning and mosaic thinning,
Part 4, Continuing Use – permits clearing of post-1990 regrowth in previously cleared areas; permits continuation of clearing consistent with land management activities undertaken prior to commencement of the Local Land Services Amendment Act 2016; permits clearing associated with a rotational land management activity and authorises re-categorisation of land in certain circumstances,
Part 5, Equity – permits clearing of native vegetation; provides for recategorisation of areas cleared of native vegetation in accordance with the Part; and provides for establishment of set aside areas on Category 2- regulated land,
Part 6, Farm Plan – permits clearing of native vegetation on Category 2- regulated land; provides for re-categorisation of areas cleared of native vegetation in accordance with the Part; provides for establishment of set aside areas on Category 1- exempt land and Category 2 – regulated land; and provides for recategorisation of set aside areas established in accordance with the Part.

The Hearing

The 2017 Code was challenged in the NSW Land and Environment Court by the Nature Conservation Council. The Council argued that the Code was invalid because before making the Code, Primary Industries Minister Niall Blair had failed to obtain the concurrence of Environment Minister Gabrielle Upton. This concurrence is required by law. The Court upheld the challenge on procedural grounds.

After the judgment, the office of the Minister for Primary Industries released a statement in which it was confirmed that the NSW Government was “moving quickly to respond to (the) court’s declaration” (ABC News, 9 March 2018).

"Its top priority is providing legal and operational certainty to ensure the benefits of the reform continue to be realised.

(The Government is) absolutely committed to delivering on this important reform and meeting its obligation to act on the recommendations of the Independent Panel".

The Codes were re-released almost immediately, on Friday 9 March 2018. This was possible because the Codes were not an Act of Parliament and were only held by the Court to be procedurally invalid.

Responses

Upon the re-release of the Code, the Nature Conservation Council’s CEO, Kate Smolski told The Guardian:

“By waving these laws through a second time without even pausing to consider the consequences, Premier Berejiklian has gone against the wishes of voters and the advice of leading scientists.

The government’s own experts have warned 99% of koala habit on private land is left exposed to clearing by these laws and that there would be a spike in tree loss of up to 45%.

As the state’s peak environment organisation, we will continue to do everything we can to expose the damage of land clearing and will not stop until we have laws that give nature the protection it deserves.”

The Sydney Morning Herald reported that the Environmental Defenders Office's CEO, David Morris, said that the new code will open the way for broadscale land clearing "without any checks or balances":

"In conceding that they failed to follow due process, the government gives the strong impression of making laws on the run.

Ecologically sustainable development is not just another box to tick – the Environment Minister has a legal responsibility to protect biodiversity in this state."

The Greens environmental spokeswoman, Dr Mehreen Faruqi, also told the Sydney Morning Herald that if the Berejiklian Government had "any integrity they would tear up these laws permanently and commit to restoring and strengthening native vegetation protections":

"They were were warned that these laws were a disaster but arrogantly refused to listen in their pursuit to appease vested interests."

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.