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Native Vegetation Clearing in NSW: a Regulatory History Briefing Paper No 05/2014 by Alec Bombell and Daniel Montoya

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Native Vegetation Clearing in NSW: a Regulatory History Briefing Paper No 05/2014 by Alec Bombell and Daniel Montoya Native vegetation clearing in NSW: a regulatory history Briefing Paper No 05/2014 by Alec Bombell and Daniel Montoya RELATED PUBLICATIONS Daniel Montoya, Rural Fires Amendment (Vegetation Clearing) Bill 2014, e-brief No. 09/2014, NSW Parliamentary Research Service, June 2014 Daniel Montoya, Burning native forest biomaterial for electricity generation, Issues Backgrounder No. 03/2014, NSW Parliamentary Research Service, March 2014 Holly Park, Biodiversity: Regulatory Frameworks, Briefing Paper No. 3/2010, NSW Parliamentary Research Service, May 2010 Holly Park, Biodiversity Certification, e-brief No. 09/2010, NSW Parliamentary Research Service, May 2010 Stewart Smith, Native Vegetation: An Update, Briefing Paper No. 6/06, NSW Parliamentary Research Service, May 2006 Stewart Smith, Native Vegetation: Recent Developments, Briefing Paper No. 1/03, NSW Parliamentary Research Service, January 2003 Stewart Smith, Native Vegetation in NSW: An Update, Briefing Paper No. 6/99, NSW Parliamentary Research Service, March 1999 Stewart Smith, Native Vegetation Protection in NSW, Briefing Paper No. 28/95, NSW Parliamentary Research Service, 1995 ISSN 1325-5142 ISBN 978-0-7313-1925-1 October 2014 © 2014 Except to the extent of the uses permitted under the Copyright Act 1968, no part of this document may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior consent from the Manager, NSW Parliamentary Research Service, other than by Members of the New South Wales Parliament in the course of their official duties. Native vegetation clearing in NSW: a regulatory history by Alec Bombell and Daniel Montoya NSW PARLIAMENTARY RESEARCH SERVICE Gareth Griffith (BSc (Econ) (Hons), LLB (Hons), PhD), Manager, Politics & Government/Law .......................................... (02) 9230 2356 Daniel Montoya (BEnvSc (Hons), PhD), Senior Research Officer, Environment/Planning ......................... (02) 9230 2003 Lenny Roth (BCom, LLB), Senior Research Officer, Law ....................................................... (02) 9230 2768 Alec Bombell (BA, LLB (Hons)), Research Officer, Law .................................................................. (02) 9230 3085 Tom Gotsis (BA, LLB, Dip Ed, Grad Dip Soc Sci) Research Officer, Law .................................................................. (02) 9230 2906 Andrew Haylen (BResEc (Hons)), Research Officer, Public Policy/Statistical Indicators .................. (02) 9230 2484 John Wilkinson (MA, PhD), Research Officer, Economics ...................................................... (02) 9230 2006 Should Members or their staff require further information about this publication please contact the authors. Information about Research Publications can be found on the Internet at: http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/V3LIstRPSubject Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. CONTENTS SUMMARY .......................................................................................................... i LIST OF ABBREVIATIONS ............................................................................. vii 1. INTRODUCTION AND BACKGROUND ..................................................... 1 1.1 Why is native vegetation important? ..................................................... 1 1.2 Historical background ............................................................................ 2 1.3 The current state of native vegetation in NSW ...................................... 4 2. NATIVE VEGETATION CLEARING CONTROLS PRIOR TO 1995 ........... 6 2.1 Crown Lands legislation and the Western Lands Act 1901 ................... 7 2.2 Soil Conservation Act 1938 ................................................................. 10 2.3 Water Act 1912 ................................................................................... 15 2.4 Hunter Valley Conservation Trust Act 1950 ........................................ 16 2.5 Local Government Act 1919 and the Environmental Planning & Assessment Act 1979 .......................................................................... 17 2.5.1 Environmental Planning Instruments ............................................ 19 2.6 Forestry Act 1916 ................................................................................ 24 2.7 Other relevant legislation ..................................................................... 25 2.8 Total Catchment Management and State Tree policies....................... 26 2.9 Summary ............................................................................................. 31 3. NATIVE VEGETATION REFORM: 1995 – 1997 ...................................... 32 3.1 Phase 1 - State Environmental Planning Policy No. 46 – Protection and Management of Native Vegetation ...................................................... 33 3.1.1 Background to introduction of SEPP 46 ........................................ 33 3.1.2 SEPP 46 Summary ....................................................................... 33 3.1.3 Amendments to SEPP 46 ............................................................. 36 3.1.3 Response to SEPP 46 .................................................................. 37 3.2 Phase 2 – the NSW Vegetation Forum ............................................... 39 3.3 Phase 3 – new legislation .................................................................... 41 3.3.1 Government Consideration of the NSW Vegetation Forum Report, the White Paper and the Native Vegetation Conservation Bill ...... 41 3.3.2 Native Vegetation Conservation Act 1997 .................................... 41 3.3.3 Initial Responses to the Native Vegetation Conservation Act 1997 47 3.4 Phase 4 – Developments post enactment of the Native Vegetation Conservation Act 1997 ........................................................................ 47 3.4.1 Savings and transitional regulations 1998 .................................... 47 3.4.2 Increased political activity at the Federal Level ............................ 48 3.4.2 Community Reference Panel reviews 2000-2001 ......................... 50 3.4.3 The First Regional Vegetation Management Plans ....................... 52 3.5 Impact of the Native Vegetation Conservation Act 1997 on clearing, and calls for review .................................................................................... 55 3.6 2002 Auditor-General Report .............................................................. 56 4. FURTHER REFORM AND THE NATIVE VEGETATION ACT 2003 ........ 57 4.1 Background to the introduction of the Native Vegetation Act 2003 ..... 57 4.1.2 The Wentworth Group .................................................................. 58 4.1.3 The Native Vegetation Reform Implementation Group ................. 59 4.2 Key changes introduced by the Native Vegetation Act 2003 ............... 60 4.3 Native Vegetation Regulation 2005 and the Environmental Outcomes Assessment Methodology ................................................................... 66 4.4 2006 Auditor-General’s follow-up report .............................................. 68 5. LEGISLATIVE REFORMS AND REVIEWS SINCE 2005 ......................... 69 5.1 August 2007 private native forestry amendments ............................... 69 5.2 2009 review of the Native Vegetation Act 2003 ................................... 70 5.3 Streamlining of the Property Vegetation Plan assessment process in the Environmental Outcomes Assessment Methodology .................... 72 5.4 2011 review of the Native Vegetation Regulation 2005 ....................... 72 5.5 The Native Vegetation Regulation 2013 .............................................. 75 5.5.1 Native Vegetation Regulation 2013 disallowance motion ............. 78 5.6 NSW report on Native Vegetation 2011-2013 ..................................... 79 5.7 Related legislation ............................................................................... 79 5.7.1 Burning native forest biomaterial for energy generation ............... 79 5.7.2 2014 Vegetation Clearing Provisions in the Rural Fires Act 1997. 80 6. CURRENT DEVELOPMENTS CONCERNING NATIVE VEGETATION REGULATION .......................................................................................... 83 6.1 Constitutional challenge ...................................................................... 83 6.2 Self-Assessable Codes March 2014 ................................................... 84 6.3 Native Vegetation Amendment Bill 2014 ............................................. 85 6.4 Biodiversity Offsets Policy ................................................................... 89 6.5 2014 Biodiversity Legislation Review .................................................. 90 7. RECENT DEVELOPMENTS AT THE FEDERAL LEVEL ......................... 96 7.1 Senate Finance and Public Administration References Committee Inquiry 2010 ........................................................................................ 96 7.2 2012 COAG Australia’s Native Vegetation Framework ....................... 98 8. EMERGING AND RECURRING ISSUES ............................................... 100 9. CONCLUSION ........................................................................................ 104 APPENDIX A ................................................................................................
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