Document Type

Journal Article


This article compares and contrasts regulation of native vegetation clearance in areas of New South Wales covered by the Native Vegetation Act 2003 with the very different approach taken in urbanising areas of the state under the Environmental Planning and Assessment Act 1979. The former is characterised by absolute prohibitions on clearing in some contexts, eg threatened ecological communities which are in moderate condition, and elsewhere requires proposals to “improve or maintain” environmental outcomes. This test can be satisfied by compensating for on-site damage caused by vegetation clearance with environmental management actions (offsets) carried out elsewhere. The issue is an empirical one, determined by a scientific methodology designed to replace like with like, or better. Under the EPAA, on the other hand, the extent to which clearing is regulated usually depends on the provisions of local plans, and, where consent is required, decision-makers exercise broad discretion in weighing up competing values. There is a persuasive argument that the planning system is structurally biased in favour of development proposals. On top of this, there is no consistent policy with regard to offsets in urbanising areas. Indeed, it is unclear whether local councils even have the power to impose them as conditions of consent where they cannot reach agreement with proponents. Even with the implementation of biobanking under the Threatened Species Conservation Act 1995, development proposals will not be required to meet an “improve or maintain” test or to provide offsets. This disjunction between regulation in rural and urban areas has substantial implications for both the range of biological diversity conserved and who bears the cost of conserving it.