61 In this section, the processes for submitting and assessing applications to clear

native vegetation in the various jurisdictions are discussed and assessed.

Obtaining approval to clear native vegetation

In all jurisdictions, the onus for determining whether approval is required to clear or modify native vegetation lies with the landholder. In most jurisdictions, State and Territory government agencies have provided considerable information on the requirements necessary to comply with legislative regimes. However, the Commission received evidence that the demands placed on landholders to understand the operation and interaction of the various regimes were often significant. Landholders are required to determine which, if any, legislative regime applies to the proposed activity — for example, local government planning order, State legislation (threatened species or native vegetation controls) or the Australian Government’s EPBC Act.

Complexity

Complex regulatory regimes increase the costs to landholders in terms of the time and effort needed to understand the regulation. Uncertainty as to how regulations apply may also result in non-compliance due to incorrect interpretation of the restrictions. The complexity of regulation was an issue that was raised by participants from most jurisdictions (box 3.3).

The South Grafton Residents Progress Association (New South Wales) argued:

The statutes are very complex and will require considerable expenditure on the part of landholders to ensure that they do not become penalised for breaching various sections of one or more of the requirements.

Where clearing of an area requiring the submission of a development application becomes necessary the landholder (at his/her cost) could be required to secure expert reports as well as legal assistance to ensure that their application has a chance of success. Further costs will be incurred if an appeal mechanism is undertaken when an application is rejected. (sub. 104, pp. 2–3)

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Box 3.3 Participants’ views on the complexity of native vegetation and biodiversity regulation

AgForce (Queensland):

The key point is that the interpretation of the different requirements of State and Federal Legislation requires considerable advice … The impact of these Acts and the inconsistencies between them create a high level of uncertainty for producers in terms of their right to develop and manage their properties. They also create significant expense in seeking advice and approval under each Act. (sub. 54, pp. 4–5)

Kempsey Shire Council (New South Wales):

The confusion and often intimidation felt by many farmers as a result of this complicated procedure (gaining consent) may drive farmers to undertake works in an illegal manner (according to one piece of legislation or another). Many farmers have indicated (to me) that this menagerie of legislation requirements is often used by agencies to avoid the identification of responsibilities in certain situations by certain agencies. (sub. 3, p. 2)

South Australian Farmers’ Federation:

Enquiries regarding native vegetation matters represent a major proportion of concerned farmer calls to the South Australian Farmers’ Federation on natural resource matters. In an attempt to rectify the confusion that exists in rural communities the Federation has published a series of articles — written by Native Vegetation Council Officers — detailing the current controls on clearing and existing exemptions. The need to do this is evidence enough of a failure by the Council to properly communicate current rules and regulations to the general public. (sub. 140, p. 10)

Reserve Design Management (Tasmania):

One of the main issues we had come across in [dealing with some local councils] was that there was a very limited understanding and an enormous amount of confusion in the community about the responsibilities of individuals, the requirements that are placed on organisations by legislation, regulation and the opportunities that exist for them to achieve funding. (trans., p. 801)

Inconsistencies in regulation

Understanding of, and compliance with, regulation appears to be impeded in some jurisdictions as a result of inconsistencies in regulatory regimes. In New South Wales, for example, clearing that is exempt under the NVC Act may be subject to other regulation such as a local government planning order or a recovery plan made under the threatened species legislation. The National Farmers’ Federation argued, in relation to the situation in New South Wales, that:

Farmers [who] are required to comply with the [NVC Act] … must seek approval to clear land … unless it falls within a statutory exception … Yet where a proposed development activity falls within this exception it may still trigger the [TSC Act] which may result in severe restrictions in property use. Under the [TSC Act] where a species is identified as ‘threatened’ it is an offence to ‘harm, pick or damage’ the species and

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Impact Statement. The [TSC Act] provides that clearing done in the interests of ‘routine agriculture’ may be exempt from the operation of the Act yet fails to provide any definition of what this exemption entails. (sub. 128, p. 15)

In relation to Queensland, the Queensland Farmers’ Federation observed:

Amid the natural resource management reform process of late, it is clear that Queensland’s primary producers are struggling to keep up with the raft of natural resource management agendas at local, State and Commonwealth levels. In Queensland natural resource management has evolved in a piecemeal fashion, with vegetation, water, salinity, greenhouse, biodiversity conservation, chemical management and other priorities addressed inconsistently in terms of planning and the subsequent implementation of such planning. (sub. 177, p. 1)

Inconsistency between legislation does not appear to be a problem in jurisdictions where decisions made under the primary vegetation legislation have primacy over other regulatory instruments, such as in Tasmania.

Some considered that the administration of native vegetation regulations had implications for other legislative and policy objectives, such as controlling noxious weeds and maintaining road safety.

In New South Wales, some participants argued that native vegetation controls were preventing landholders from meeting their obligations under the Noxious Weeds Act 1993 to remove designated species of weeds from their properties. Rod Young (trans., pp. 1240–59) argued that when ‘cost-effective’ measures such as the spraying and burning of weeds are prohibited because of their implications for native vegetation, landholders are effectively prevented from managing the weeds. Other NSW participants who expressed similar views included Doug Stanton and Jim Edwards (trans., pp. 1240–59) and Anne Waugh (sub. 106).

The Dalrymple Landcare Committee (Queensland, trans., pp. 1047–56) observed that the Dalrymple Shire Council classified Parkinsonia as a ‘high priority’ weed targeted for control in the local catchment area. However, native vegetation regulations have prevented the Landcare Committee from employing measures to control the weed. In this situation, the native vegetation regulations ‘have taken precedence’ (trans., p. 1052).

Robin Weatherald (trans., pp. 1596–602) described the tension in Victoria between local government requirements to manage roadside vegetation for safety purposes and State vegetation management regulations.

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hampered by the legislation and contributed to increased compliance costs:

… there’s an extraordinarily large amount of money being required to be spent on roadside vegetation and its management. Just the removal of one tree basically has the estimated cost of approximately up to $5000 in paperwork bureaucracy. We’ve had it explained to us by officers that in particular positions, the lopping of limbs off overhanging trees on roadways will require a planning permit …

It’s totally unsustainable for local government in my opinion to continue on down this process. (trans., pp. 1597–8)

Other participants who highlighted the issue of native vegetation regulations and road safety included Geoff Sebire (trans., pp. 1609–23) from Victoria and Sally McKay and Jim McDowall (trans., pp. 1689–702) from South Australia.

The obligations placed on landholders by the various regimes often seem unnecessarily complex and onerous. In some jurisdictions, landholders are required to obtain approval from several government departments and authorities.

Assessment of applications to clear native vegetation

Applications for permits to clear native vegetation are usually the responsibility of a State government agency or statutory body (for example, the Native Vegetation Council (NVC) in South Australia and the Forest Practices Board in Tasmania). In Victoria, under the Planning and Environment Act 1987 (PE Act), local government assesses small applications, but for applications to clear an area greater than 10 hectares, local government is required to seek the view of the Victorian Department of Sustainability and Environment (DSE) and implement their decision. Under the proposed NSW regime, landholders may apply to the DIPNR for development consent to clear native vegetation, or submit a Property Vegetation Plan (outlining the proposed removal or modification of native vegetation) to a Catchment Management Authority for certification. The Forest Practices Act 1985 (FP Act) in Tasmania provides for limited self-regulation, where landholders and the forestry industry have some responsibility for the development and certification of Forest Practice Plans.

Transparency and consistency

In a number of jurisdictions the decision-making process has been criticised for a lack of transparency. Transparency may be aided by the publication of guidelines on

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