The Local Land Services Amendment Bill  - the new framework for Native Vegetation in NSW.

On 2 May 2016 the New South Wales government released the draft government bill titled Local Land Services Amendment bill 2016. The intent of this bill once passed is to repeal the Native Vegetation Act 2003.

The proposed bill and associated package is said to have been designed by the government to deliver better land management practices for farmers and regional communities in New South Wales whilst maintaining the balance and the importance placed on Native Vegetation.

In essence the bill proposes that Rural Land in New South Wales will either be exempt or regulated land for the purposes of clearing. In the event that land is regulated then similar rules to the existing self-assessment codes and policies will apply to the land in the event that the landholder wishes to undertake any clearing of native vegetation whether that be standing timber or ground cover. In the event that the land is classified as exempt then the landholder will be permitted to undertake clearing without any requirement for first obtaining approval.

One of the issues with the government’s current bill is that it makes reference to mapping which will outline what land falls into each classification. Unfortunately this mapping has not yet been released and at this stage it is not expected that the final map of New South Wales will be released until January or February of 2017. Obviously from a landholder’s perspective the mapping is perhaps more important than the actual bill itself as there will be obvious difficulties for a landholder in the event that their land is classified as regulated.

The mapping will show regulated land as yellow and land which is exempt from the laws will be shaded in blue. Put simply, if the landholders land in shaded in blue then the landholder will be permitted to undertake clearing.

In the event that the land is shaded yellow then the landholder will be subject to the new legislation and regulations which appear to be very similar to the existing self-assessable codes as contained in the current Act and Regulations

It appears that in order for land to be classified as exempt the environmental agency head must believe that:

1      The land was cleared of native vegetation as at 1 January 1999; or

2      The land has been lawfully cleared of all native vegetation since that time. Alternatively the land will be designated as exempt in the event that the head of the environmental agency have reason to believe that;

1. The land contains low conservation value, grass lands or;
2. The land was identified as re-growth in a property vegetation plan as referred to in section 92 of the current act or;
3. The land is of a kind prescribed by the regulations as category 1 exempt plan.

Land which is to be defined as regulated will be done so in the event that the head of the Environmental agency reasonably believe that

1. The land was not cleared of native vegetation as at 1 January 1990; or
2. The land has been unlawfully cleared since that time.

At this stage the penalties for illegal clearing remain similar to the existing Act and ultimately it will be left to the discretion of the particular judicial officer hearing the case in either the Land and Environment Court or the Local Court as to what penalties are imposed upon a landholder who unlawfully clears his or her land of native vegetation.

In relation to the all-important map it is said that the maps will be prepared through a combination of sources including satellite and aerial imagery. It is said that the following will be used to develop the Native Vegetation regulatory map:

1. Existing land use records between 1999 and 2003;
2. Recent imagery being satellite and aerial images taken between 2007-2013
3. Seasonal cover images
4. Aerial images taken between 1 January 1990 and 2013
5. Other images which identify clearing and no disturbance between 1 January 1990 and 2013.

It is said that a proposed internal review process will enable the landholder to provide additional information in the event that they believe that their land has been incorrectly categorised. At this stage it appears that the chief executive of the Office of Environment and Heritage will be able to review land in certain circumstances which is said to ensure that any errors will be amended and new data and information can always be incorporated in order for the land to be re-categorised. The difficulty however is that if the land which is the subject of a categorisation dispute has not been cleared lawfully in the first place then it will have clear consequences for the landholder.

 The New South Wales Farmers Association has stated that in their opinion the “proposed package goes a long way in remedying the existing legislation in its more equal approach to the social environmental economic considerations that impact upon land management. There are however a number of obvious issues including mapping and the bi-diversity assessment methodology proposed by the draft legislation and the association consider that significant action is required before the bill is ready to be debated in parliament in the spring sitting.”

From our perspective the difficulty with the current package is that the mapping is not available for public consideration and it appears that parliament will in fact be debating the package prior to the release of the mapping. This, in our respectful opinion is unfair as it does not allow individual landholders to adequately consider what impact the proposed bill will have on their operations and livelihood.

We will liaise with our clients once the mapping has been released.

For further information in relation to the bill please contact Brendan Moylan or Mitchell Carrigan. 

 

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