The Department of Environment, Land, Water and Planning (DELWP) is leading a Victorian Government review of the native vegetation clearing regulations (the review), focusing on how the controls in the Victorian Planning Provisions (VPP)1 have functioned since the reform in 2013. Based on targeted consultation with stakeholders, community members and local councils, DELWP has developed the Review of the native vegetation clearing regulations Consultation Paper2 (Consultation Paper) and is calling for feedback and submissions by 5pm 29 April 2016. Partner, Meg Lee and Lawyer, Zina Teoh explore the key reform ideas in the paper. Developers of greenfields and rural sites will need to be familiar with the proposed changes and may need to revisit the scope of any studies commissioned to ensure the new requirements are considered.
Focusing on "no net loss" to achieve overall "net gain"
In 2013 the VPP reforms shifted the objective of the regulation from "net gain" in native vegetation to "no net loss", a concept which was already familiar to the industry from the previous iteration of the controls. The Consultation Paper confirms that the overall objective remains "no net loss" while at the same time, the Victorian Government maintains that it is committed to achieving overall "net gain" at a general policy level. The Government states that "no net loss" is consistent with the "net gain" objective because it is not necessary for improvements to all habitats and vegetation to occur to achieve "net gain" overall. However, it is necessary that the overall gains do outweigh the losses and this is supported by the "no net loss" objective in the native vegetation clearing regulations.3
Consolidating permit assessment pathways from three to two
The 2013 reforms had introduced into Clause 52.27-5 of the VPP a 3 tiered, risk-based approach to assessing permit applications, where each application to remove native vegetation must be classified as low, moderate or high risk. The review has identified issues with this approach including:
- The large number of applications being assessed under the low risk-based pathway which has less onerous requirements and more lenient assessment.
- The misleading distinction between "moderate" and "high" risk-based pathway applications.
To address these issues, the proposals included in the Consultation Paper seek to consolidate the assessment pathways to from three, to two:- a "lower assessment pathway" and a "higher assessment pathway,"4 as well as to reduce the "lower assessment pathway" threshold so that fewer applications are assessed in this category.5 The proposal is therefore to move the threshold between the categories to be 0.5ha or 7 trees (instead of currently, 1.0ha or 15 trees).
Reintroducing a requirement to demonstrate "avoidance"
The proposals include a return to the "avoidance hierarchy", whereby each permit application must include demonstration that attempts have been made to firstly avoid the removal of native vegetation as well as continuing to demonstrate that the amount proposed to be removed has been minimised . The proposal is that this requirement apply to all applications in both the 'lower' and 'higher' risk pathways.
The "avoidance hierarchy" was removed from the regime in the 2013 reform, although the objective of avoidance remained in the purpose of the Clause 52.17. Currently, only moderate and high risk-based applications are required to submit a 'minimise statement' and offset strategy, so the proposed reforms would see an increase in the application requirements for all permit applications for clearing native vegetation.
The detail of what type of statement will suffice for an 'avoidance statement' is not provided and this is considered to be a vexed area for developers and decision-makers alike. Is it simply a matter of demonstrating that the subdivision layout has considered avoiding the highest quality remnant areas? Or is it a question of trading of the avoidance of larger patches? Does the practicability of the subdivision design and other factors such as balancing the best location for intersections come into the equation when demonstrating avoidance? In areas covered by Precinct Structure Plans or Development Plans for broader areas where consideration has already been given to avoiding and protecting areas within the broader site, does a permit application for an area within that site also have to demonstrate further avoidance within the boundaries of that lot? These are matter that developers may wish to address in their submissions.
Site specific survey information now able to be used to address limitations of mapped information
While the review has identified a general consensus that the mapping tools used under the regulations are useful in assessing biodiversity value, there are also some limitations to the use of the tools.Importantly, stakeholders expressed the view that reliance on habitat importance maps alone, without data collected at a site, can sometimes result in inaccurate assessments of the habitat and consequently a significant offset requirement. For example, this can occur when sites are considered by ecological experts to be unsuitable for a certain species, but the habitat importance maps include that species habitat at the site, resulting in a perverse requirement for a specific offset for a species that is not being impacted by the development.
The Consultation Paper proposes that circumstances when site collected data can be used to supplement mapped information should be developed, so that inaccuracies in mapped information can be addressed to result in a better assessment of biodiversity value of a site. The detail of what circumstances would enable site specific information to be considered have not been included in the paper and therefore should be considered as part of any submission being made by developers.
Improvements to the Offset regime
The other major changes proposed by the Consultation Paper are aimed at improving access to and transparency of offsets, including to try and increase the use and functionality of the Credit Register. One of the proposals7 is to require all third party offsets to be registered on the Credit Register, including those offsets provided through the use of Section 173 Agreements. The aim is to improve the level of surety around the offset management actions being undertaken over time and ensuring the offset is only traded once. While this appears to be a good idea in principle, it may result in increased costs for such offsets.
Improvements to the Exemptions in Clause 52.17
The final section of the Consultation Paper sets out proposed improvements to the set of exemptions contained in clause 52.17, including proposals to develop a set of 'purposes and principles' that sit behind the exemptions so as to assist decision-makers in applying the exemptions. Obviously there are always dangers in supplementing the primary document (the Planning Scheme) with additional interpretive aids and care will need to be taken in determining the 'status' of such a document and ensuring it is clearly worded. In addition, it is proposed to make wording changes to some of the exemptions, however no detail is provided on the scope of such changes.
New and improved?
The review of the native vegetation clearing regulations comes at a time of increased state government focus on biodiversity and coincides with the development of a 20 year draft biodiversity plan Protecting Victoria's Environment – Biodiversity 2036 and a review of the Flora and Fauna Guarantee Act 1988.
The proposed improvements seek to refine and restructure some of the amendments made in 2013 as well as a return to some of the previous concepts of "net gain" and the requirement to prove "avoidance", as part of an overall effort from the Government to deliver its election promise of a biodiversity strategy for Victoria. As always, the devil will be in the detail, and it is therefore important that developers in greenfields and rural areas (including wind farms) consider making a submission to the Consultation Paper before the 29 April deadline.