A recent decision in the Perth Magistrates Court has demonstrated the importance of ensuring environmental approvals are considered before clearing native vegetation in the state. Following an investigation by the Department of Water and Environmental Regulation (DWER), Magistrate Hawkins fined a Perth company $56,000 and ordered it to pay $6503 in costs for illegal clearing in Bouvard which impacted native vegetation and wildlife. The DER also issued a Vegetation Conservation Notice requiring the company to revegetate and maintain native vegetation at the site.
The company cleared 18 hectares of native vegetation between late 2011 and early 2012. The site was home to 12 mammal, 21 reptile and 46 bird species and also served as foraging habitat for the endangered Carnaby’s Black Cockatoo. A site inspection confirmed the presence of a dead Western Ringtail Possum and South West Carpet Python.
The decision highlights the importance of asking two key questions if preparing to undertake development on vegetated land within the State: (1), do I need a clearing permit; and (2) how can I apply for a clearing permit?
Do I need a clearing Permit?
Needing a clearing permit is determined by a number of factors including if the clearing activity triggers the operation of either State or Federal legislation, if the proposed clearing activity is excluded from requiring a permit and if there are any environmental values present which nullify such an exemption. The following is an overview of these requirements.
Clearing law in Western Australia
Both State and Commonwealth laws regulate clearing in Western Australia. The primary legislation is the Environmental Protection Act 1986 (WA) (EP Act) and Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (Clearing Regulations). However, clearing which impacts certain species will also trigger the Environment Protection and Biodiversity Conservation Act 1999.
Environmental Protection Act 1986 (WA)
The EP Act is the primary legislation applying to environmental regulation in the state and the DWER is responsible for administering both the clearing provisions of the EP Act and Clearing Regulations.
Clearing is given a broad definition under the EP Act which includes killing, removal, destroying, ringbarking or doing any substantial damage to all or some native vegetation in an area. Native vegetation includes both aquatic and terrestrial vegetation, dead vegetation (unless excluded in the regulations) but does not include vegetation in a plantation.
The EP act makes it an offence to clear native vegetation unless a clearing permit has been obtained or the clearing is exempt under either Schedule 6 of the EP Act or the Regulations
Exemptions and their exceptions
Exemptions are specifically provided under Schedule 6 of the EP Act and certain low impact land management practices as outlined under the Clearing Regulations are also exempt from requiring a permit.
Exemptions under the Clearing Regulations however do not apply to activities done within an ‘Environmentally Sensitive Area’ (ESA). ESAs are declared by the Minister for Environment pursuant to environmental policies applicable to specific environmental values in the state. Accordingly, practices listed under the Clearing Regulations may not be exempt if those practices impact environmental values specified in these policies.
Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)
Clearing native vegetation may also trigger the operation of the Federal EPBC Act, if it likely to have a significant impact on a ‘matter of national significance’ (MNES). MNES include specific species such as the Carnaby’s cockatoo but also includes various other species and ecological systems such as Ramsar Wetlands, listed migratory species and any environmental value declared to have World Heritage Properties. Recently, all Banksia Woodlands of the Swan Coastal Plain have been identified as endangered under the EPBC. If triggered the EPBC Act may impact the requirements for obtaining a Clearing Permit or the availability of exemptions.
How can I apply for Permit?
There are two types of clearing permits. A Purpose Permit is appropriate for clearing pursuant to a specific task, such as clearing for a track or fire break. An Area Permit is applied for by way of defining specific boundaries required for clearing, for example a paddock or farm. All applications for clearing permits must be made to the DER and will be assessed against the Clearing Principles outlined in the EP Act.
What happens if I clear without a clearing permit?
The maximum financial penalty for clearing without a permit is $250,000 for an individual and $500,000 for a body corporate. A holder of a clearing permit who contravenes a condition is liable to receive a fine of up to $62,500 for an individual or $125,000 for a body corporate. The DER also has the ability to issue a Vegetation Conservation Notice requiring revegetation of a site in addition to financial penalties.
This recent decision serves as an important reminder that if you are undertaking any form of development on vegetated land you need to ensure you have considered the clearing permit process as part of your environmental due diligence.
For more information please contact Graham Castledine.
Disclaimer: The information contained in this update is not advice and should not be relied upon as legal advice. Castledine Gregory recommends that if you have a matter in relation to which legal advice is required, you consult with your legal adviser.
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