Vegetation Clearing (NSW)

Laws for vegetation management in New South Wales are strict and complex. They are mainly found in the Local Land Services Act 2013 and the Biodiversity Conservation Act 2016. If proposed clearing will have a significant impact on matters of national environmental significance, approval may be needed under the Environment Protection and Biodiversity Conservation Act 1999. National parks, state forests and other conservation areas are excluded from the vegetation management legislation.

Definitions

The Local Land Services Act 2013 defines “native vegetation” as trees (including a sapling, shrub or scrub), understorey plants, groundcover (any type of herbaceous vegetation), and wetland plants naïve to NSW. The definition does not include marine vegetation such as mangroves or sea grasses

To “clear” vegetation means to cut down, fell, uproot, thin or otherwise remove vegetation. It also means to kill, destroy, poison, ringbark or burn native vegetation.

Land categories

The state’s native vegetation regulatory map divides the state into category 1 – exempt land, category 2 – sensitive regulated land, and category 2 – vulnerable regulated land.

Category 1

Land is placed in this category for reasons including that it was cleared of native vegetation before 1 January 1990 or has been lawfully cleared since then; it contains low conservation value grasslands; or it contains native vegetation that is regrowth.

Category 2

Land is placed in the sensitive regulated category for reasons including that it:

• was not cleared of native vegetation before 1 January 1990 or has been unlawfully cleared since then;
• contains native vegetation that was preserved with the help of public funds;
• is subject to a private land conservation agreement;
• is subject to be set aside under a land management code;
• contains grasslands that are not low conservation value grasslands;
• is or was subject to a requirement to take remedial action to restore or protect the biodiversity values of the land;
• is subject to an approved conservation measure because it is biodiversity certified;
• is identified as koala habitat;
• contains critically endangered species of plants.

This land includes old growth forest, rainforest, and coastal wetlands.

Land is placed in the vulnerable regulated category for reasons including that it is:

• steep and highly erodible land;
• protected riparian land (within 20 metres of the bed or bank of a named body of water);
• special category land (vulnerable to soil erosion, salinity, sedimentation and/or landslips) which could include:
  • Aboriginal sites;
  • coastal dunes;
  • flora and fauna protection land;
  • mass movement areas.

Land management (native vegetation) codes

These codes apply to category 2 land. The codes can make rules for the clearing of native vegetation, such as where clearing can and cannot be done; which kinds of vegetation can be cleared; how the clearing can be done; the notice and certificates required; the record keeping required; and about the conservation of biodiversity.

If a landholder fails to give Local Lands Services required notice of clearing, they face a maximum fine of $22,000, or $110,000 if they are a corporation.

Clearing in regulated rural areas

A person who clears native vegetation in a regulated rural area without authority under the Act or other approval faces a maximum fine of $500,000. The fine is $2 million for a corporation. If the offence was committed intentionally and it caused or was likely to cause significant harm to the environment, the maximum fine for  a person is $1 million, or $5 million for a corporation

Clearing can be authorised in many situations, such as when it is done:

• under a development consent, state-significant infrastructure approval, or biodiversity conservation licence;
• to fight fires or to conduct fire hazard reduction work;
• to help supply electricity;
• by the SES to avoid a threat to life or property;
• in a plantation operation;
• in a forestry operation;
• under a water licence, permit or approval;
• under a lease, licence or other authority for mining;
• under a fisheries licence;
• to carry out a land survey.

Clearing approvals

When considering an application to clear native vegetation on category 2 land, Local Land Services must consider the environmental, social and economic impacts of the proposed clearing and the purpose for which the land is to be used after the clearing. Factors for consideration are:

• the likely impact of the proposed clearing on biodiversity values;
• whether the clearing is likely to cause or increase soil erosion, salination, acidification, land slip, flooding, pollution or other adverse land or water impacts;
• any future clearing that has been authorised or notified but not yet done.

An approval must not be granted if the proposed clearing is likely to have serious and irreversible impacts on biodiversity values.

An approval can be granted subject to conditions but the conditions cannot relate to the use of the land after it has been cleared.

For advice or representation in any legal matter, please contact Armstrong Legal.