On 1 July 2017, the Native Vegetation Regulations 2003 are revoked and the new Native Vegetation Regulations 2017 commence.
Major changes to the regulations include the adoption of a mitigation hierarchy as the guiding principle for all clearance activities, and the creation of four separate approval pathways for vegetation clearance. The bulk of the exemptions under the existing regulations have been retained and assigned to one of these approval pathways. While this has resulted in some changes, the approval process remains unchanged for the bulk of the exemptions. For a full breakdown of the changes to the existing exemptions, please see the table at the end of this article.
Mitigation hierarchy
The hierarchy is set out as follows:
- avoidance—measures must be taken to avoid clearance of native vegetation;
- minimisation—if clearance of native vegetation cannot be avoided, measures must be taken to minimise the duration, intensity and extent of impacts of the clearance on biological diversity to the fullest possible extent (whether the impact is direct, indirect or cumulative);
- rehabilitation or restoration—measures should be taken to rehabilitate ecosystems that have been degraded, and to restore ecosystems that have been destroyed, by impacts of clearance of native vegetation that cannot be avoided or further minimised;
- offset—where required under the regulations, any adverse impact on native vegetation or ecosystems that cannot be avoided or minimised must be offset by the achievement of a significant environmental benefit that outweighs that impact.
The hierarchy not only applies to the Native Vegetation Council (NVC), but also to any persons undertaking permitted clearance. The NVC must apply the hierarchy when making decisions or exercising its power under the Act. Persons undertaking permitted clearance must have regard to, and give effect to the hierarchy.
Approval pathways
The structure of the regulations has been reworked. The new regulations organise and present the exemptions by the applicable approval pathways. The pathways are:
- Permitted clearance (self assessed)
- Fire hazard reduction
- Vegetation management
- Risk assessment
Permitted (self assessed) clearance
Activities under this pathway are self assessed by the person undertaking the vegetation clearance. In making a self-assessment, persons must have regard to, and give effect to the mitigation hierarchy. Some activities under this pathway require that the NVC be notified of the clearance.
Fire hazard reduction
There are two limbs under this pathway. The first allows clearance in any of the circumstances set out for that part (fire prevention and control, and clearance for the purposes of the Fire and Emergency Services Act 2005). The second requires that the clearance be in accordance with written approval from the Chief Officer of the CFS as well as any applicable bushfire management plan. The NVC must also be notified of the clearance.
Vegetation management
Persons undertaking clearance under this pathway must ensure either that the clearance is undertaken in accordance with a management plan OR that the clearance is undertaken in accordance with applicable guidelines adopted by the NVC. The NVC can however require that a person satisfy both of the above.
Risk Assessed
The Risk Assessed pathway has been further divided into the following streams:
- Clearance for major developments and projects
- Clearance for mining and petroleum activities
- Clearance for exploratory operations
- Clearance for other activities
Each of these pathways create different requirements but generally at least require that the clearance be in accordance with a management plan (in the absence of a payment into the Native Vegetation Fund).
New exemptions
New exemptions have been added to the 2017 Regulations including:
- Cultural activities
- Recreational tracks
- Commercial vehicle access tracks (greater than 5m)
Matters to be considered by Council
Regulation 19 prescribes the relevant matters to be taken into account by the NVC when making decisions. This includes the mitigation hierarchy, potential impacts on biological diversity, potential impacts on soil, water and other natural resources and potential cumulative impacts, both direct and indirect.
Conditions of approval
Conditions imposed by the NVC in connection with an approval is binding on and enforceable against not only the person to whom the approval is granted, but also all owners and subsequent owners of the land to be cleared, as well as any occupiers of the land and any other persons who acquire the benefit of the approval.
Time limits
Regulation 21(1) establishes a time limit of 2 years to undertake any clearance for which approval is granted by the NVC (or the Chief Officer of the CFS). The NVC or the Chief Officer can, at the time of granting the approval extend this period, but to no more than 5 years.
It should also be noted that where clearance is undertaken in accordance with a management plan, a time limit of two years is imposed from the day on which the plan is approved by the Council.
Penalties
The new regulations impose a penalty for the provision of false and misleading statements (including via omission of any particulars). The maximum penalty is $10,000.
Additionally, a maximum penalty of $10,000 now applies to any contravention or non-compliance with a condition imposed on an approval by the Council.
Please see the below link to a table summarising the changes to the existing exemptions.
Native Vegetation Regulations 2017
If you have any questions about the new Regulations please contact James Levinson on 8212 9777