NSW reinstates land clearing laws after code ruled invalid


The NSW Government has reinstated its land clearing laws and code, the day after a the NSW Land and Environment Court ruled that the recently commenced land clearing code was invalid, following a challenge filed by the Nature Conservation Council.

The code, which exempt clearing from normal development assessment requirements in a range of circumstances, is part of recent changes to land clearing laws under the NSW government's biodiversity conservation reforms. It was to be signed off by Environment Minister Gabrielle Upton in concurrence with the Primary Industries Minister before the changes came into force on 25 August 2017.

However, Minister Upton failed to sign off until after they had commenced thereby invalidating the code.

In November 2016, the NSW Coalition government replaced the Native Vegetation Act, the Threatened Species Conservation Act and the Nature Conservation Trust Act, replaced them with the new Biodiversity Conservation Act.

Nature Conservation Council CEO Kate Smolski said it was "deeply troubling that the government disregarded the important oversight role of the Environment Minister when making environmental laws, but we are even more concerned about the harmful content of the laws themselves".

“By the government’s own assessment, they will lead to a spike in clearing of up to 45% and expose threaten wildlife habitat to destruction, including 99% of identified koala habitat on private land."

A document obtained by EDO NSW for the Nature Conservation Council, was prepared by the Office of Environment and Heritage for the Environment Minister and outlined the consequences of Ms Upton agreeing to land-clearing codes proposed by Primary Industries Minister Niall Blair.

Key warnings in the document include:

  • “The regulatory changes will further increase agricultural clearing by between 8% and 45% annually.” (Page 3)

  • Clearing under the code risks: “Removing key habitat for threatened species, including koala habitat (less than 1% of identified koala habitat in NSW is protected from clearing under the Code)” and “Increasing vulnerability of threatened ecological communities”. (Page 6)

  • If unchecked “such clearing could destroy habitats, cause soil and water quality impacts”. (Page 5)

  • “The main benefits are likely to be private benefits for large farming operations which broadscale clear under the Code.” (Page 6).

Ms Smolske said it was "completely cynical for the government to immediately remake these laws without first correcting their many flaws and including environmental protections the community wants and the science says we need.

“By waving these laws through a second time without even pausing to consider the consequences, Premier Berejiklian has gone against the wishes of voters and the advice of leading scientists", she said.