Damaging Habitat Of Threatened Species

The maximum penalty for illegal habitat damage under the National Parks and Wildlife Act 1974 is $1.1 million, one year’s imprisonment, or both.

Section 118D of the National Parks and Wildlife Act 1974 states:

• A person must not damage any habitat of a threatened species, an endangered population or an endangered ecological community if the person knows that the habitat concerned is habitat of that kind.
• In this section, damage includes to cause or to permit damage.

The National Parks and Wildlife Act 1974 applies to a wide range of land outside of national parks, including land containing residential development in rural zones.

In order to damage or destroy threatened species habitat without having potentially committed an offence under section 118D of the National Parks and Wildlife Act 1974, a person needs to obtain approval for the clearing in one of the following forms:

• a licence or certificate under the National Parks and Wildlife Act 1974 or Threatened Species Conservation Act 1995,
• a property vegetation plan under the Native Vegetation Act 2003,
• a joint management agreement under the Threatened Species Conservation Act 1995,
• a conservation agreement under the National Parks and Wildlife Act 1974, or
• a project approval, development consent, or other relevant approval under the Environmental Planning and Assessment Act 1979

In August 2010, the Land and Environment Court of NSW held that where the actions of a third party cause damage to habitat as a ‘natural consequence’ of the defendant’s conduct, then the defendant is taken to have caused the habitat damage the subject of the offence. Specifically, the court found that where an expert consultant gives incorrect advice to a person about the habitat of a threatened species and, in reliance on that advice the person orders another party to clear the vegetation, then the expert consultant can be said to have caused the damage and may be found guilty of an offence under s118D.