In 2014, NSW farmer Ian Turnbull shot and killed an Office of Environment and Heritage compliance officer over a land clearing dispute. This tragedy represents a culmination of building tensions between the NSW Government and commercial landowners, who claim that biodiversity laws are unnecessarily restrictive of land use, and are out of touch with farming and land clearing practices. Evidence suggests that in the 13 years since the inception of the arguably complex and inefficient Native Vegetation Act 2003 (NSW) (NVA), biodiversity in NSW has actually fallen. Needless to say, compliance is generally very poor.

On 3 May 2016, just two weeks after the commencement of Ian Turnbull’s trial, the government released its draft Biodiversity Conservation Bill (Bill), which implements the recommendations made by the Biodiversity Legislation Review[1], and promises law reform both to facilitate development and to more effectively conserve biodiversity.

The extensive legislative reform proposed by the Bill introduces several novel mechanisms ostensibly to achieve a balance between conservation and development. The proposed changes, which appear to be very much in favour of development objectives, effectively remove many restrictions on land clearance, and provide an unprecedented level of autonomy in private land management. The impact of these mechanisms on developers and landowners are analysed below.

Native Vegetation Regulatory Map

The Bill proposes a novel ‘native vegetation regulatory map’ which will clearly show the regulatory categorisation of land areas, including those areas that are of low conservation value, capable of being cleared without any compliance with regulations.

Currently, landowners wishing to clear vegetation must themselves decide whether approval is required under the NVA. This requires making technical and subjective decisions such as whether the clearing is likely to result in the substantial long-term decline in native vegetation, or whether regrowth is protected. The native vegetation regulatory map is designed to remove this burden on landowners, and allow more time-efficiency and certainty in land clearing. In practice, categorising land as low conservation value and exempting it from regulation will increase the incidence and extent of indiscriminate land clearing in NSW.

Although undoubtedly a desirable tool for landowners, the cost and administrative burden of maintaining such a state-wide map accurately is potentially quite staggering. Even with constant updating and ‘ground truthing’, inaccuracies in mapping are likely, further increasing the chance of haphazard or damaging land clearing.

Voluntary Stewardship Agreements

The Bill proposes a system by which private landowners may enter into voluntary conservation agreements. These agreements will provide financial incentives for landowners who agree to comply with conservation measures and, in the event of breach, to repay money they have received under the scheme. Funds will be paid to landholders from the proposed Biodiversity Conservation Trust, the body that will administer the new regime.

These agreements could represent a valuable income source for landowners, provided the financial burden of compliance is not too high.

Risk Categories

Risk-based land management is perhaps the mechanism that most facilitates land clearing and development. Under the new regime, proposed development activities will be categorised according to the likely risk they pose to biodiversity. Although certain limits will be imposed, this system will allow unprecedented amounts of land clearing without approval or notification to Local Land Services. The aim here is ensuring that regulatory responses (if any) are proportionate to likely long-term impacts on biodiversity, taking into account the consequences of any biodiversity impacts if they occur. This aspect of the Bill largely assumes that landowners know best when deciding how much risk clearing activities will pose to biodiversity, and allows them to make determinations as to risk levels according to comprehensive but non-binding codes of practice.

Biodiversity Assessment Method

Where a land clearing activity does pose a significant risk to threatened species, ecological communities or habitats, the land in question will become subject to assessment of its biodiversity value. With a view to consolidating and clarifying the methodology by which biodiversity value is assessed, Bill introduces a single ‘scientifically robust Biodiversity Assessment Method (BAM) that will apply across the board.

Although the BAM promises transparency in how biodiversity is quantified, comprehensive information about what will be taken into account does not yet appear to be available. Accredited decision-makers retain the discretion to consider the offset calculations, and to approve major projects even where they pose serious and irreversible risks of species extinction.

Although a promising step in the direction of a transparent, scientifically viable biodiversity assessment method, the BAM requires a lot more clarification before it can be properly assessed as a solution to present assessment problems.

Offsetting

Another major change proposed by the Bill is the introduction of market-based offsetting. Currently, landowners must find offsets themselves, and offsetting must be “like-for-like”, creating similar biodiversity in the local area. Under the new regime however, landowners will be able to purchase biodiversity credits on the market, or enter into voluntary stewardship agreements to generate credits, or to simply make payments to the Biodiversity Conservation Fund to satisfy their offsetting obligations. The Biodiversity Conservation Fund will then be responsible for securing offsets generally. The new system imposes no obligation that offsetting be at a local level.

Implications

The take away message for developers and landowners alike is that the Bill proposes a regulatory system that is ostensibly flexible, permissive, and market-based. The suggested changes will reduce red tape and unnecessary regulation, and make land clearing easier. By affording such autonomy to landowners, the new scheme allows those with the “local hands on experience” to shape the future of their own land, and to work towards biodiversity outcomes in a realistically achievable, and financially efficient way.

Landowners’ new found autonomy does however come at a price. Allowing self-regulation may seem an attractive carte blanche to develop without fear of non-compliance sanctions, when in reality, it may expose landowners to unexpected record-keeping requirements, and sanctions if inspected by regulators. As yet, the government has not indicated how compliance will be monitored, so the full extent of land-owner burden is not known. The Bill does however introduce tough new penalties, including heavy fines and up to 5 years imprisonment for giving false or misleading information in relation to land-clearing or biodiversity value, so landowners will need to stay up-to-date and informed as details of the new regime emerge.