The Native Vegetation Conservation (NVC) Act and the Environmental Planning and Assessment (EP&A) Act: Improving the Links
The Native Vegetation Conservation Act 1997 essentially separates the planning controls of the Environmental Planning and Assessment Act 1979 so that land clearing in rural areas and protected lands falls under a separate regime of planning and administration. The Native Vegetation Conservation Act 1997 establishes a parallel process to the Environmental Planning and Assessment Act 1979 for regional planning and the processing of clearing applications. However, this has resulted in a duplication of functions in some areas and gaps in others. This paper presents options to improve the management of native vegetation by better integrating existing regional planning and development approval processes. Ways of improving the linkages between Regional Vegetation Management Plans and Local Environmental Plans, and minimising the duplication of consent roles but retaining regional frameworks to achieve effective native vegetation conservation and management, are presented. Reasons and options to improve cooperative arrangements between Regional Vegetation Committees, Department of Land and Water Conservation and Local Government staff are also explored.
native vegetation, clearing, planning, development
When the Native Vegetation Conservation Act 1997 (NVC Act) commenced in 1998, it essentially separated the planning controls of the Environmental Planning and Assessment Act 1979 (EP&A Act) so that land clearing in rural areas and protected lands fell under a separate regime of planning and administration. To facilitate this, the NVC Act established a parallel process to the EP&A Act for regional planning and clearing approvals for the clearing, retention and management of native vegetation.
This division of responsibility brought about by the NVC Act is not as clear-cut as originally thought. The introduction of the Act has resulted in a duplication of development consent and regional planning processes which overlap with existing processes under the EP&A Act. This has resulted in situations where consents under both the EP&A Act and NVC Act may be required before a development can proceed. The introduction of the NVC Act also resulted in a new regional planning framework for native vegetation conservation and management, one which has had arduous ties with existing council planning instruments. Differences in the scale at which the various levels of planning processes operate contribute to the inconsistencies and practical problems experienced when implementing the planning provisions.
The primary aim of this paper is to demonstrate how better integration of the NVC and EP&A Acts can improve the delivery of a more efficient and sustainable planning system and the effectiveness of the NVC Act’s primary objective of providing for the conservation and management of native vegetation on a regional basis. Firstly, the paper describes the regional planning frameworks and development consent processes of the EP&A Act and NVC Acts. It then identifies the current problems between the two Acts brought about by the duplication of planning provisions. Options for improving the operation and integration of the Acts are then canvassed. Legislative processes and policies are current as at 21 September 2001 unless otherwise stated.
A broad overview of the planning frameworks for the EP&A and NVC Acts is provided in Appendix 1. For the purposes of this paper, the consent authority for development under Part 4 of the EP&A Act is taken to be a local council.
In some situations, there is the potential for a development to require both development consent under the EP&A Act and land clearing approval under the NVC Act. This situation exists for those zones for which both the NVC Act and EP&A Act can apply (e.g. rural, rural residential, open space, environmental protection, special uses).
If a local environmental plan (LEP) (or other environmental planning instrument) initially requires council consent under the EP&A Act for a development, and that development also requires the clearing of native vegetation in accordance with Part 2 of the NVC Act, then both the EP&A Act and NVC Act apply*. For example, this situation may arise for larger scale subdivisions in rural residential areas, or larger scale tourism developments in rural zones. In this situation, the developer may need to obtain both a development consent from the council and a clearing consent from the Minister for Land and Water Conservation (see Figure 1). This dual consent situation may also arise if a council’s tree preservation order applies to an area which requires clearing approval under the NVC Act.
This dual consent situation brought about by the NVC Act has increased the consent requirements for developers, as approval from both the Minister for Land and Water Conservation (to clear native vegetation) and from the council (for the development) can be required. Thus, there are two opportunities for the proposal to be refused. While this initially appears to afford native vegetation greater protection, it can in fact make native vegetation more susceptible to loss. The dual consent requirement also potentially enables one Act to be played off against the other (ie. a developer could initially seek approval from the authority with the least stringent requirements). In this regard, the different consent authorities may require different standards of flora and fauna survey. For example, DLWC (1999a) has issued interim guidelines indicating that flora and fauna survey reports are only required for “large applications” (e.g. clearing >50ha for agriculture). The different consent authorities may also require different levels or areas of native vegetation retention. Resolving these matters before native vegetation is disturbed presents a challenge for developers, councils and DLWC.
Figure 1. How the dual consent process arises under EP&A Act and NVC Act when development involves clearing (dual consent process shown in bolded arrows)
The dual consent process has also caused some loopholes and potential confusion amongst government agencies. There have been reports on the NSW north coast of clearing being conducted under the guise of agriculture (falling within the exemptions provisions of the NVC Act), only to have a development application then lodged with council on the already cleared land. There have also been reports of land clearing approvals being issued under the NVC Act for logging in areas zoned “environmental protection” for scenic protection purposes. In these instances, the logging was incompatible with council zoning objectives set out in LEP clauses. This lack of integration between the consent processes and lack of regard to LEP provisions makes native vegetation potentially more susceptible to clearing.
Clearing consent may additionally be required under the NVC Act for government infrastructure activities that require an EIS under Part 5 of the EP&A Act (e.g. new railway line construction, transmission lines). This requirement appears to present an unnecessary duplication in the approvals process as government agencies have the ability to comment on the activities when such EISs are publicly exhibited. It also appears to be inconsistent with the NVC Act in the sense that EISs prepared under Part 4 of the EP&A Act do not require approval under the NVC Act.
A further complexity arises if Part 5 proposals cross multiple property boundaries as the NVC Act consent requirements are tied to individual properties. Activities such as transmission line construction may require clearing in numerous properties, thereby requiring a multiplicity of clearing consents under the NVC Act.
If clearing of native vegetation or protected land is undertaken without consent, then the NVC Acts specifies that 126(1) of the EP&A Act (Penalties) applies. This provides for a penalty of 10,000 penalty units ($1,100,000) in Land and Environment Court Proceedings. Penalty monies go towards consolidated revenue.
Intriguingly, the NVC Act does not state that s126(3) of the EP&A Act applies (Smith 1999). This section states that if a person is found guilty of an offence involving the destruction of, or damage to a tree or vegetation, the Court may direct the offender to plant new trees and vegetation and maintain those to mature growth. There is also provision to provide security for the performance of the revegetation. In light of the above, the NVC Act is limited to imposing financial penalties rather than achieving rehabilitation of the area affected.
Both the EP&A Act and NVC Act provide very similar regional planning frameworks and controls. The EP&A Act provides for the creation of Regional Environmental Plans (REPs) and LEPs. These instruments direct where types of land-uses can occur. They also place controls over planning processes and how and where certain developments should and should not occur. They can include provisions to control land clearing. Traditionally, REPs have been issue-specific and covered only a small portion of the State while LEPs cover most of the State. LEPs cover a local government area (LGA), are developed and administered by a council, and deal with all the land-uses for that LGA.
The NVC Act provides for the creation of a RVMP for a native vegetation region. A native vegetation region must be at least the size of a LGA. (The native vegetation regions which have been declared in NSW and the LGAs implicated in those regions are presented in Table 1). RVMPs are usually prepared by Regional Vegetation Committees (RVCs). RVMPs provide the planning controls for the management and conservation of native vegetation and the specifications as to what clearing is allowed in a region (Smith 1999). When made they become an environmental planning instrument (EPI) for the purposes of Part 4 of the EP&A Act.
As RVMPs will cover the same areas as LEPs and REPs in the rural areas of the State, there will exist a duplicate planning framework for these areas: one administered by DLWC, and the other by the local council. This creates a potentially complex planning framework with various planning controls applying and the relevant consent authority being dependant upon the land-use controls of any relevant EPI (e.g. LEP) and the nature, scale and location of any clearing. For example, a number of councils in rural NSW also have controls which either implicitly or explicitly provide for native vegetation management and conservation (e.g. Dubbo LEP 1997 – Rural Areas, Wakool LEP 1992 (Amendment No 5) 2001, Wagga Wagga Development Control Plan (DCP) 11 – Native Vegetation Cover for Rural Residential Land).
RVMPs must provide for the same level of protection as contained in any EPI (e.g. LEP). Incorporating the level of protection afforded native vegetation by any EPI (e.g. LEP) will present a challenge to RVCs particularly in relation to those controls which implicitly protect native vegetation. However, when made, a RVMP operates as an EPI for the purposes of Part 4 of the EP&A Act. It can therefore potentially over-ride other EPIs to the extent of any inconsistency and will prevail over vegetation provisions crafted by council in their LEPs (Sproats and Kelly 1998). This complexity demonstrates the need for RVMPs and LEPs (and other EPIs) to link as closely as possible. How LEPs and RVMPs will inter-relate remains a challenging task for RVCs, DLWC and local government.
The implications for local government controls on clearing may also be implicitly changed when a RVMP is made. In the absence of a RVMP, councils can have supplementary controls via their LEPs when the clearing falls outside of Part 2 of the NVC Act (e.g. clearing <2ha). If RVMPs extend their influence beyond the current exemptions (e.g. the 2ha exemption) the ability for council to control land clearing is lessened.
The provisions of RVMPs will also influence both clearing and development consent decisions. Because RVMPs become EPIs for the purposes of Part 4 of the EP&A Act, they must be taken into account under s79C of the EP&A Act when determining consent under Part 4 of that Act (see Appendix 1). This is applies to a council determining a development consent under the EP&A Act and the Minister for Land and Water Conservation when considering issuing consent under the NVC Act (which adopts the consent process of Part 4 of the EP&A Act). Hence, both consent authorities must apply s79C and give consideration to RVMPs. RVMPs therefore have the ability to not only influence decisions made by the Minister for Land and Water and Conservation, but also council. Similarly, other EPIs (State Environmental Planning Policies (SEPPs), REPs, LEPs) and development control plans (DCPs) must also be taken into account under s79C. Hence, both consent authorities must apply s79C and give consideration to these policies and plans.
Table 1. Native Vegetation Regions and Local Government Areas in NSW as at August 2001. Table provided courtesy of DLWC.
Native Vegetation Region
Local Government Areas
2. Central Coast
Lake Macquarie; Wyong; Gosford.
Grafton, Maclean, Nymboida, Pristine Waters (formerly Ulmarra and Copmanhurst).
4. Hunter Valley
Scone, Newcastle, Cessnock, Singleton, Dungog, Maitland, Merriwa, Muswellbrook and Murrurundi.
5. Inverell - Yallaroi
6. Karuah - Great Lakes
Port Stephens; Great Lakes.
7. Liverpool Plains
8. Lower Macquarie - Castlereagh
Coonamble; Gilgandra; Warren; Narromine; Dubbo City.
Gloucester; Greater Taree.
Parkes; Forbes; Weddin; Bland; Lachlan (south of the Lachlan River).
12. Narrabri – Coonabarabran - Coolah
Narrabri; Coolah; Coonabarabran.
13. North Lachlan-Bogan
Bogan; Lachlan (north of Lachlan River).
14. Northern Tablelands
Severn; Guyra; Uralla; Armidale; Glen Innes; Dumaresq; Walcha.
15. North Western Slopes
Tamworth; Manilla; Barraba; Bingara; Parry (part north-west of Peel and Cockburn Rivers, Jamison Creek, the boundary between the Parishes Burke and Mulverinde in the County of Inglis joining the boundary of Walcha LGA).
16. Nundle-South Parry
Nundle and Parry (part south east of the Peel and Cockburn Rivers, Jamieson Creek, the boundary between Parishes Burke and Mulverundie in the County of Inglis).
Lismore; Ballina; Kyogle; Casino; Richmond River.
Holbrook; Tumbarumba; Tumut; and those parts east of the Hume Highway and of Gundagai, Hume and Wagga Wagga.
19. Southern Highlands - Illawarra - Shoalhaven
Shoalhaven; Shellharbour; Kiama; Wollongong; Wingecarribee; Wollondilly.
20. South-East Corner
23. Western Riverina
Berrigan, Carrathool, Conargo, Deniliquin, Griffith, Hay, Jerilderie, Leeton, Murray, Murrumbidgee and Wakool.
Currently, local government is only afforded one position on a RVC, irrespective of how many LGAs are implicated in the region and will be affected by the RVMP. This single local government representative may not adequately represent the interests of all the LGAs covered by the region. The representative is also commonly a mayor or elected councillor. They may not have any relevant planning experience necessary for the RVMP preparation. The ability of local government to contribute to a Plan which will directly affect their local planning provisions (LEPs), is therefore limited.
There are three main ways to improve links between the EP&A and NVC Acts in order to improve the management and conservation of native vegetation, and more efficient decision-making:
1. Better Integration of Development and Clearing Consents;
2. Better Integration of Regional Approaches;
3. Better Involvement of Local Government in RVMPs.
As raised earlier, situations can arise where two consents are required for a development, one under the EP&A Act for the development itself and the other under the NVC Act for the associated clearing. These situations raise difficulties for developers, councils and DLWC regarding how to process such proposals.
In terms of addressing this issue under the current legislative arrangements, the question arises which consent should be sought first? The EP&A Act and NVC Act are both currently silent on which consent must take place first.
If the developer seeks consent under the NVC Act before applying to council, then that consent enables the developer to clear before approaching council for its consent. The Minister for Land and Water Conservation is only responsible for assessing the land clearing impacts and may not be in a position to examine the development in its entirety. Also, the requirements for flora and fauna survey may vary between DLWC and council. For example, flora and fauna survey reports are only required by DLWC for “large applications” (DLWC 1999a). If the clearing is approved and conducted prior to seeking council’s consent, council’s ability to wholistically assess the development application (including the need for the development and its impacts) is compromised.
If council’s consent is sought first, then council can assess the application in its entirety including the need for the development and its potential social, economic and environmental impacts. Council would also be more familiar with the controls in its LEP and DCP which influence the consent process.
In light of the above, council’s consent should be sought in the first instance as council is in a position to wholistically consider the development application and its full range of impacts. Should council decide the grant the approval, then the clearing approval under the NVC Act acts as a second catch. Councils can put the onus on applicants to identify whether consent will be required under the NVC Act and if so, hold pre-DA lodgement meetings with the applicant and DLWC. In this way, all issues and outcomes are identified early before any application is lodged, and potential differences in assessment requirements (e.g. biodiversity) between council and DLWC, overcome.
In the longer term, changes to the EP&A Act could be investigated. One option is to have NVC Act matters fall under the Integrated Development Approvals System (IDAS) under s 91 of the EP&A Act. This system, adopted in 1998, reduces the duplication in approvals and consents through a system of concurrence. If clearing under the NVC Act was made “Integrated Development”, then any EP&A Act development involving clearing that would normally also require consent under the NVC Act, would instead require concurrence from DLWC. Land clearing proposals not involving development (e.g. agriculture) would still solely fall under the control of the NVC Act. Such as system would reduce the complexities of the current system and decrease the risk of native vegetation loss from the inconsistencies in the current dual consent process
As EISs under Part 5 of the EP&A Act canvass impacts on the environment, including land clearing, it could be argued that additional clearing consent under the NVC Act is unnecessary. Part 5 activities that require an EIS could be made exempt from requiring NVC Act consent as is currently the case with developments which require an EIS under Part 4 of the EP&A Act.
Another option would be to have a system with concurrence, similar to that described above, for situations where both Part 5 approval and NVC Act consent were required. If a system of concurrence was adopted, it would be appropriate to have a system which required only one NVC Act consent when a government infrastructure project crossed multiple property boundaries.
As indicated earlier, the NVC Act is limited to imposing financial penalties under s126(1) of the EP&A Act when land clearing is conducted in breach of the NVC Act. The Act is thus restricted to imposing monetary penalties rather than achieving rehabilitation or revegetation outcomes.
This matter can be overcome by expanding the legislative provisions so that the NVC Act also adopts the provisions of s126(3) of the EP&A Act. This would then enable the Court to direct the offender to plant new trees and vegetation and maintain those to mature growth. It would also enable the Court to require security for the performance of the revegetation. The inclusion of such a provision might also entice more prosecutions of breaches to the NVC Act as there would be a clear avenue to achieve revegetation rather than financial penalty.
The complexities and duplication of the regional planning frameworks between the EP&A Act and the NVC Act raises whether the current system could be improved? Clearly, a better framework is needed to overcome the potential duplication of planning controls influencing development and land clearing decisions.
The proposed PlanFirst reforms (DUAP 2001) advocate the development of regional strategies to bring together all existing regional information to provide a planning framework from which local plans can be developed. However, the details of this process have yet to be finalised.
What-ever approach is adopted, there is clearly a need to better integrate the current RVMP and LEP frameworks. One option (possibly as an interim step towards regional strategies) is to have the aims and contents of the RVMP to establish a framework for vegetation conservation and management (including codes of practice and measures for rehabilitation and revegetation). RVMP requirements could be applied on a LGA-by-LGA basis with local councils taking over the responsibility of assessing clearing applications (see Figure 2). The framework could establish a system whereby local government could only approve development and clearing applications so long as the provisions of the RVMP had been met. In instances where the proposals were inconsistent with RVMP provisions (e.g. vegetation targets, revegetation requirements), there could be a mechanism of concurrence with DLWC. In this way clearing and development applications would be integrated and considered by one agency (local government) while the RVMPs would still guide the decision-making.
The above scenario would require staff training and resourcing of local government. DLWC could also assist Local Government in the administration of land clearing applications particularly during the transition phase, and assist RVCs with the remaining RVMPs. After RVMPs were completed, DLWC staff could focus on extension work thereby assisting the farmers and rural community in revegetation programs, soil conservation and practical management of native vegetation. In this way, RVCs could retain ownership of the RVMP while the day-to-day administration of clearing applications would be the responsibility of local government but influenced by the provisions of the RVMP. This would also achieve a single consent authority for development and clearing applications thereby ameliorating current problems with the dual consent process. DLWC staff resources would be freed from processing consents enabling them to assist rural communities in extension work and revegetation programs. Monitoring of native vegetation clearing and revegetation could be reported in the annual State of Environment Report prepared by local government.
Figure 2. Long-term option for a more integrated framework for Native Vegetation
The advantages of increasing local government involvement in RVCs and the preparation of RVMPs becomes most apparent when the requirements of RVMPs and the consent process of Part 4 of the EP&A Act are examined.
Draft RVMPs must afford the minimum level of protection established by any relevant EPI (e.g. LEP, REP) that conserves native vegetation. Such information is currently held by councils. Also, draft RVMPs must identify areas of core koala habitat under SEPP 44 (Koala Habitat Protection). This information is largely held by councils, particularly those that have prepared Comprehensive Koala Plans of Management for their LGA and who have comprehensively mapped the vegetation types occurring in their area (e.g. Coffs Harbour, Port Stephens). A number of local councils have also collected comprehensive biodiversity and/or vegetation community information for their LGA (e.g. Byron, Taree, Wyong, Lake Macquarie, Cootamundra). This information can be used consistently with RVMPs to ensure that both councils and RVCs utilise the same information sources for decision-making and to ensure that compatible decision-making occurs.
As RVMPs become EPIs for the purposes of Part 4 of the EP&A Act, they must be considered under s79C of the EP&A Act when deciding upon consent, whether applied by councils (when issuing development consent) or by the Minister for Land and Water Conservation (when issuing consent to clear native vegetation or protected lands). It is therefore in both the interests of councils, RVCs and DLWC that the RVMPs integrate as closely as possible with existing EPIs such as LEPs and that the RVMP provisions clearly indicate the native vegetation matters to be considered under s79C regardless of the consent authority.
It has also recently been argued that in the wheat-sheepbelt of NSW, local government is best placed for linking planning, particularly catchment planning, with on-ground actions at appropriate scales for landscape and habitat rehabilitation (Briggs 2001). This is partly due to the scale at which local government operates and in part due to the ability of local government to manage land-use through planning controls. Briggs (2001) emphasises the need for councils to establish formal agreements with Catchment Management Boards, with agencies, with Landcare groups, Landcare Networks and RVCs to maximise rehabilitation outcomes.
In light of the above, the effective involvement of local government in RVCs and RVMP preparation is therefore important in ensuring that RVMPs effectively integrate and link with existing planning instruments such as LEPs.
While the current formal structure of RVCs limits local government to a single representative, greater involvement of local government can be achieved through RVC administrative arrangements. DLWC (1999b) has issued a Circular entitled “Native Vegetation Planning and Local Government”. This outlines a number of ways in which local government can participate in RVMP preparation as well as improve the management of native vegetation where RVMPs are not being prepared. RVCs should be encouraged to liase with local government planners from all relevant LGAs early in the process of RVMP preparation. This is so that RVMPs adopt the minimum provisions to protect and manage native vegetation as established by current EPIs and to ensure that all parties know how RVMPs will link with the existing planning instruments. For comparative purposes, it is interesting to note that under the Rural Fires Act 1997, Bush Fire Management Committees (BFMCs) have both an elected member of council plus a council environmental planner for each council LGA in the Committee’s area.
In light of the above, the involvement of local government in RVMP preparation can be increased by RVCs liasing with each local council and ensuring that the RVMPs link as closely as possible with existing LEPs and other EPIs. RVCs can arrange to have an advisory sub-committee which includes an elected council member and a council planner from each LGA implicated in the native vegetation region and potentially affected by the RVMP.
The successful management and conservation of native vegetation across the State is dependent upon cooperative arrangements between councils, RVCs and DLWC staff. While the NVC Act has increased protection of native vegetation through the consent and RVMP process, dual consent situations and the awkward relationship of RVMPs to other EPIs are compromising the effectiveness of the NVC Act in maximising native vegetation management and conservation outcomes. Ideally we need to move to a situation where is a consistent and integrated regional framework to guide planning and decision-making for all land uses. There is also a need to deliver a more effective planning process that minimises duplication of regulatory consent roles.
The ideas discussed in this paper are presented to stimulate discussion. They are designed to improve the effectiveness of the NVC Act in achieving its primary objective of providing for the conservation and management of native vegetation on a regional basis. They are also designed to deliver effective and efficient decisions that consider development proposals wholistically and have due regard to the environmental, social and economic impacts.
The NVC Act will be reviewed in 2003 as required by the Act. It is advantageous to all parties to be considering how the legislation can be improved and begin collating necessary changes now.
The ideas presented here are those of the author an do not necessarily reflect those of the Department of Urban Affairs and Planning, and NSW Government.
I thank Andrew Kennedy (NSW Agriculture), Alison Cochrane (DLWC), Don Geering (DUAP) and Susan Calvert (DUAP) for comments on earlier copies of this paper. Katrina South (DUAP) and Rochelle Thompson (DUAP) provided input into the ideas expressed here. I am also grateful to Jenny Birrell and Robyn Holding who assisted with library reference material.
1. Briggs, S.V. 2001. Linking ecological scales and institutional frameworks for landscape rehabilitation. Ecological Management and Restoration, 2: 28-34.
2. DLWC 1999a. Interim guidelines for targeted and general flora and fauna surveys under the Native Vegetation Conservation Act (1997). Department of Land and Water Conservation, Sydney.
3. DLWC 1999b. Native Vegetation Planning and Local Government. Department of Land and Water Conservation, Sydney.
4. DUAP 2001. Plan First. Review of Plan Making in NSW: White Paper. NSW Department of Urban Affairs and Planning, Sydney. 53pp.
5. Lee, E. and Rupp, J. 1998. The Native Vegetation Conservation Act (NSW). Environmental and Planning Law Journal, 15(2): 82-82.
6. Smith, S. 1999. Native Vegetation in NSW: An Update. NSW Parliamentary Library Research Service. Briefing Paper No. 6/99.
7. Sproats, K. and Kelly, A. 1998. The Role of Local Government in Natural Resource Management: Discussion Paper. Paper prepared for the Local Government and Shires Associations of NSW.
The Environmental Planning and Assessment Act 1979 (EP&A Act) sets the broad framework for land use planning in New South Wales. Its objects include to encourage the proper management, development and conservation of natural and man-made resources, including agricultural land and natural areas. The objects also specifically refer to encouraging the protection of the environment, including the protection of native animals and plants, including threatened species, populations and ecological communities, and their habitats.
Part 3 of the EP&A Act3 provides a process for land-use planning at three levels – State, regional and local. It does this by providing for the preparation of environmental studies and the making of a number of environmental planning instruments (EPIs), notably State Environmental Planning Policies (SEPPs), Regional Environmental Plans (REPs), and Local Environmental Plans (LEPs). The preparation of SEPPs and REPs is initiated either by the Minister for Urban Affairs and Planning or DUAP. The preparation of LEPs is initiated by a council. These instruments guide and direct the types of land uses and developments which can and cannot occur in particular areas.
From a regional perspective, traditionally, REPs have been used to provide guidance on a particular planning issue (e.g. new urban uses, protection of scenic landscape) rather than providing a regional framework for all land-uses. They therefore only cover small portions of the State. In contrast, almost all councils in the State have LEPs in place for their entire local government area (LGA).
Part 4 of the EP&A Act establishes a process for the lodgement and assessment of development applications and the issuing of development consent by a consent authority (usually a council). When assessing a development application the consent authority must take into account the matters specified under s79C(1). This includes the following:
The Department of Urban Affairs and Planning has produced a Guide to Section 79C(1) to assist councils in the application of this section of the EP&A Act.
Works which do not require development consent under Part 4 of the EP&A Act (such as government infrastructure projects) may require approval under Part 5 of the EP&A Act. Part 5 of the EP&A Act is triggered if the proposed work (known as an ‘activity’) constitutes a use of land and requires the approval of a government authority (known as a determining authority). If the activity is likely to have a significant effect on the environment, then an EIS must be prepared for the activity.
The NVC Act sets the broad framework for the management of native vegetation in New South Wales. Its objects include to provide for the conservation and management of native vegetation on a regional basis, and to encourage and promote native vegetation management in the social, environmental and economic interests of the State.
The NVC Act provides for the establishment of Regional Vegetation Committees (RVCs) and the preparation of Regional Vegetation Management Plans (RVMPs) for a particular region (Lee and Rupp 1998). A region may comprise any one or more LGAs but must be at least the size of one whole LGA.
RVCs comprise fifteen members including one representative from local government and DLWC. RVMPs are prepared by either the Director-General of Land and Water Conservation or Regional Vegetation Committees (RVCs). To date, the practice has been for RVCs to prepare these plans.
A draft RVMP must take into consideration any instrument made under an Act (including any environmental planning instrument) that applies to the region or part of the region and makes provision with respect to native vegetation. Importantly, draft RVMPs must provide for at least the same level of protection and conservation to native vegetation as provided by any relevant EPI that makes provision for the conservation of native vegetation. This includes any relevant SEPP, REP or LEP.
Draft RVMPs are publicly exhibited for at least 40 days during which time public submissions can be received on the draft Plan. The final RVMP must be published in the Government Gazette and takes effect either from the date of publication or a later date specified in the Plan. It then has a life-span of 10 years. To date only one RVMP has been finalised – the Mid Lachlan RVMP which was gazetted on 7 September 2001.
Importantly from a EP&A Act perspective , the NVC Act specifies that a RVMP is taken to be an EPI for the purposes of the EP&A Act.
Part 2 of the NVC Act adopts the development consent process under Part 4 of the EP&A Act in relation to the clearing of native vegetation and protected land. The NVC Act makes the Minister for Land and Water Conservation the consent authority for proposals to clear native vegetation and protected land. In practice, this authority is delegated to DLWC. The Minister can refuse and application or approve an application with or without conditions.
Because Part 4 of the EP&A Act is adopted for the consent process, the matters specified in s79C(1) of the EP&A Act (as previously described) must be taken into account by the Minister for Land and Water Conservation when making his decision.
Importantly, Part 2 of the NVC Act transfers the approval to clear native vegetation from the EP&A Act to the Minister for Land and Water Conservation under the NVC Act. Thus, any clearing consent required by virtue of a SEPP*, REP or LEP under the EP&A Act, requires the consent of the Minister for Land and Water Conservation rather than the council. For example, Murray REP No. 2 aims to protect the riverine corridor in LGAs along the Murray and requires council consent for clearing in wetlands and areas of mapped vegetation. The NVC Act transfers that clearing consent to the Minister for Land and Water Conservation where Part 2 of the NVC Act applies (e.g. clearing >2ha) but the council retains its consent role when clearing falls outside the NVC Act (e.g. clearing <2ha).
1 The views expressed in this paper are those of the author. They do not necessarily reflect those of the Department of Urban Affairs and Planning or NSW Government.
* This situation does not arise for ‘designated development ‘ (ie development that requires an environmental impact statement (EIS) under Part 4 of the EP&A Act) as it is excluded from the definition of ‘clearing’ under the NVC Act.
3 Part 3 of the EP&A Act is currently under review (DUAP 2001).
* SEPP 14 – Coastal Wetlands and SEPP 26 – Littoral Rainforests are excluded from the NVC Act