On 1 July 2017, new Native Vegetation Regulations came into effect reducing the existing 40 exemptions outside of clearance controls to four pathways of approval.
The 2017 Regulations permit the removal of native vegetation associated with 38 different activities by way of assignment to one of four approval pathways. The 2017 changes are designed to create four clearer pathways doing away with the 40 plus ‘exemptions’ that each required a different approach to assessment and approval.
While native vegetation removal is permitted under the Regulations, the fundamental principle that clearance is a last resort has not changed. A person proposing to clear native vegetation (proponent) should consider all possible ways to avoid or minimise the level of clearance required (referred to as the mitigation hierarchy) before making an application under the pathways.
The new pathways approach is aimed at simplifying the Regulations to increase the overall transparency of the system and reduce complexity.
Pathway 1 – permitted clearance without conditions
Under pathway 1, no approval is required for the removal of native vegetation associated with clearance within 10m of an existing building, clearance for the maintenance of infrastructure or a dam, and clearance for the safety of persons and property. This captures some of the more routine activities which require clearance, for example, building a new home and managing farms.
It is the responsibility of the proponent to self-assess whether their clearance activity meets the criteria under the Regulations and to consider the mitigation hierarchy.
In some instances, while no approval is required, notification to the Native Vegetation Council (NVC) is required. These activities include clearance for vehicle tracks, fences, plant and animal control, and clearance of native vegetation causing natural resource management problems.
Pathway 2 – fire hazard reduction
Pathway 2 facilitates native vegetation removal associated with bushfire management both with and without CFS approval. The proponent is responsible for to determining whether the activity does or does not require CFS approval. In any event, removal of native vegetation must be consistent with the applicable bushfire management plan.
A clearance activity that does not require CFS approval would be the clearance of native vegetation within 20m of a dwelling and a clearance activity that does require CFS approval is the clearance of large trees (trunk circumference of at least 2m) growing or situated within 20m of a dwelling.
Pathway 3 – vegetation management
Pathway 3 allows proponents to undertake clearance activities that require ongoing native vegetation management under a management plan. Assessment and approval by the NVC is required in order for a proponent to undertake clearance activities in this pathway.
Clearance activities that fall within pathway 3 include clearance of native vegetation on road reserves and rail corridors, clearance for the maintenance of existing agriculture, forestry or farming, and clearance for ecological restoration and vegetation management.
Pathway 4 – risk assessment
Pathway 4 relates to potentially higher impact clearance activities and requires the NVC to assess and assign a category of risk to biodiversity according to the significance of the vegetation proposed to be cleared. The risk level will determine the NVC’s depth of assessment of the clearance application and any offsets required as a result of the clearance. The public may comment on clearance applications that fall within the highest risk level.
Activities within pathway 4 are generally the subject of approval by other regulatory bodies, such as council or the Department of State Development, and assessment by the NVC will occur during assessment by these other bodies. The NVC will provide comment on the proposal and/or determine any offsets required.
Clearance activities that fall within pathway 4 include major developments and projects, and mining and petroleum activities.
What it means for you
The new Regulations simplify the regulatory complexity of the Act by allocating four streamlined approval pathways to each of the 38 categories. However, the pathways often require the proponent to undertake a ‘self-assessment’. This assessment, at times, may be incorrect, resulting in the clearance of native vegetation in contravention of the Act and Regulations.
Given the above, if you are unsure about whether a proposed clearance activity meets the criteria of a specified pathway, it may be prudent to seek advice on the self-assessment before undertaking the clearance activity.