Vegetation Clearing (WA)
Laws for vegetation clearing in Western Australia are strict and complex. They are mainly found in the Environmental Protection Act 1986. 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. Vegetation clearing
“Clearing” means to kill, remove, sever or ringbark, or cause substantial damage to, native vegetation. It includes the draining or flooding of land, the burning of vegetation and the grazing of stock.
“Native vegetation” means indigenous aquatic or terrestrial vegetation, including dead vegetation.
“Environmentally sensitive area” is an area declared by the State Government.
The Act sets out 10 principles which must be used by the department when it is deciding to grant or refuse a permit. It states native vegetation should not be cleared if:
- it comprises a high level of biological diversity;
- it comprises or maintains significant habitat for indigenous animals;
- it contains or sustains rare flora;
- it comprises or maintains a threatened ecological community;
- it is significant as a remnant of native vegetation in an area that has been extensively cleared;
- it is growing in or linked to a watercourse or wetland;
- the clearing is likely to cause appreciable land degradation;
- the clearing is to affect the environmental values of an adjacent or nearby conservation area;
- the clearing is likely to cause a deterioration in the quality of surface or underground water;
- the clearing is likely to case or exacerbate the incidence or intensity of flooding.
A vegetation clearing permit can be granted to a person which allows them to clear a particular area or different areas from time to time for a specified purpose. An area permit lasts 2 years, and a purpose permit 5 years, unless another period is specified on the permit. Permits are administered by the Department of Water and Environmental Regulation.
A permit can be granted with conditions to prevent, control abate or mitigate environmental harm or offset the loss of the cleared vegetation. Conditions can include for the person granted a permit to:
- give a conservation covenant or agreement to create a reserve;
- monitor and report on environmental harm;
- conduct environmental risk assessments;
- prepare, implement and adhere to environmental management systems.
A permit can be revoked by the department in situations such as when a person breaches a condition, or is unwilling or unable to comply with a condition, of if information contained in an application was false or misleading. A person has 28 days to appeal a revocation notice.
If a person sells a property to which a permit relates, they can transfer the permit to the property’s new owner.
The department can apply for a clearing injunction where it believes a person intends to clear, is clearing, or will continue to clear native vegetation improperly.
A permit is not required in many situations, such as when clearing is done:
- under a building approval;
- in a forestry operation;
- to build a road;
- to fight fires or to conduct fire hazard reduction work;
- to help supply electricity;
- under a fisheries licence;
- to prevent imminent danger to humans or the environment, such as after an accident;
- for Aboriginal cultural reasons;
- for land surveying;
- along fence lines;
- for railway maintenance;
- for mining or petroleum exploration.
Some clearing is exempt to the extent that the total area cleared for all of the clearing purposes is limited to 5 hectares in a financial year. Those purposes include to collect firewood, to build fencing, or to create vehicular or walking tracks.
Exemptions do not apply to environmentally sensitive areas.
A person who causes or allows clearing without a permit or exemption faces a maximum penalty of a fine of $250,000 ($500,000 for a company). Contravening a permit condition incurs a maximum penalty of a fine of $62,500 ($125,000 for a company).
Clearing that causes material environmental harm incurs a maximum penalty of a fine of $125,000 ($250,000 for a company). If the clearing is done with intention or criminal negligence, the maximum penalty a fine of $250,000 or 3 years imprisonment or both (or for a company, a $500,000 fine).
Clearing that causes serious environmental harm incurs a maximum penalty of a fine of $250,000 or 3 years imprisonment or both (or for a company, a $500,000 fine). If the clearing is done with intention or criminal negligence, the maximum penalty a fine of $500,000 or 5 years imprisonment or both (or for a company, a $1,000,000 fine).
Material environmental harm is harm that is not trivial nor negligible, and which results in loss or property damage or damage costs of more than $100,000. Serious environmental harm is harm that:
- is irreversible, of a high impact or on a wide scale;
- is significant or in an area of high conservation value or special significance;
- results in loss or property damage or damage costs of more than $500,000.
For advice or representation in any legal matter, please contact Armstrong Legal.