Specialist Corporate and Commercial Lawyers
Clearing Native Vegetation As A Landowner In NSW
Landowners should pause and carefully consider the potential legal ramifications of clearing native vegetation. Native vegetation is heavily protected and regulated in NSW and monetary penalties for unlawful clearing or interference with native flora are significant. In the most extreme cases, the Courts have imposed custodial sentences in addition to costs and monetary penalties.
Whether a landowner requires an approval, consent, certificate, or some other form of authority to remove native vegetation is dependent on the precise location of the property, and the regulations applying to it may differ to that of a neighboring property. In a narrow set of circumstances, no pre-approval may be required.
Native vegetation in NSW is the subject of extensive regulatory mapping and satellite monitoring that is regularly undertaken by the NSW Government. Areas of high biodiversity conservation are identified in every local government area and species and communities of endangered flora are mapped with some precise.
In NSW there are a number of Acts, Regulations and Statutory Instruments that protect and regulate the clearing of native vegetation, including the Biodiversity Conservation Act 2016; Biodiversity Conservation Regulation 2017; Local Land Services Act 2013; Local Land Services Regulation 2014; State Environmental Planning Policy (Biodiversity and Conservation) 2021; Land Management (Native Vegetation) Code 2018. Acts such as the Environmental Planning and Assessment Act 1979 and the Rural Fires Act 1997 are part of the planning mix to relation to what vegetation may be removed as part of any development consent.
In relation to the development consent process, it is critical that any vegetation to be removed is undertaken strictly in compliance with the terms of the development consent itself, which ordinarily are cross referenced to Bushfire Safety reports and the like.
In addition, the Water Management Act 2000 also regulates the clearing of vegetation in the vicinity of identified watercourses.
All the above Acts and Regulations have their own enforcement provisions and penalties that can apply to unlawful clearing and/or damage to native vegetation. In addition to monetary penalties, remediation orders can be made to force a land-owner to remediate a site and replant the complete floristic profile of an endangered ecological community. As the remediator, you will bear all costs of the remediation works. Further, you may also be required to have an independent ecologist inspect the remediation site every year and provide a detailed report of the inspection to the Department pf Planning and Environment (Department). The current duration of Remediation Orders implemented by the Department is between 5-30 years.
If Court proceedings are undertaken by the Department or Local Council, then both the defendant’s and prosecutor’s legal costs are an additional “penalty” on a landowner and/or perpetrator.
In relation to the latter, we would especially caution any contractor who proposes to undertake native vegetation clearing at the direction of a landowner or agent, as they can be held equally liable for clearing works.
Timely advice and due diligence will help mitigate the risk if you are intending to clear native vegetation. Failure to seek advice and obtain the requisite consents may result in significant expenditures of both time and money.
This article is not legal advice. It is intended to provide commentary and general information only. Access to this article does not entitle you to rely on it as legal advice. You should obtain formal legal advice specific to your own situation. Please contact us if you require advice on matters covered by this article.