Doctor of Philosophy
Faculty of Law
Kelly, Andrew Harley Heron, The role of local government in the conservation of biodiversity, PhD thesis, Faculty of Law, University of Wollongong, 2004. http://ro.uow.edu.au/theses/386
This thesis comprises a critical review of the role of Local Government in the conservation of biological diversity (or ‘biodiversity’). Whilst the vast majority of the text relates to NSW, much of the broader commentary may extend to other Australian jurisdictions. The nub of the thesis is that despite the rhetoric in key documents – including the National Strategy for the Conservation of Australia’s Biological Diversity, the NSW Biodiversity Strategy, the National Local Government Biodiversity Strategy and various plans and policies made at the municipal level – the outlook is grim without fundamental policy, legal and fiscal change. The topic is huge but crucial to any person concerned about the mammoth decline of biodiversity in Australia. Whilst being intrinsically transdisciplinary in nature, the thesis attempts to contribute to the ‘new production of knowledge’.¹ It raises issues, problems, ideas and recommendations. The work is based on: • A literary search until 2001. The long gap between this date and thesis submission is due to a severe illness suffered by the author, which arose in late Dec 2001.² • Empirical research into: o nine 1998/1999 ‘state of environment’ reports prepared for by councils located roughly in or around the ‘NSW South-western Slopes’ bioregion that is recognised for the extremely limited extent of remnant native vegetation; o conservation related clauses in all gazetted ‘comprehensive’ Local Environmental Plans - i.e. those applying to entire Local Government areas - prepared by councils between 1995 and 2000 inclusively and which remain in force; • Personal discussion with various officials and onlookers directly involved in, or concerned about, biodiversity conservation at the municipal level. Brief summaries of each chapter are provided herein. The introduction initiates discussion on (i) the meaning of ‘biodiversity’, including its shift from a scientific concept to a populist expression, (ii) the position of councils in Australian government and (iii) the significance of biodiversity conservation at the local sphere. It also introduces two related concepts that are met throughout the thesis, which arguably erode council conservation capability: Local Government’s ‘historical and cultural baggage’ and the ‘ratepayer ideology’. The following three chapters provide the ‘historical and institutional’ context. Chapter Two focuses on changing societal perspectives towards the biophysical environment, together with resultant statutory and environmental trends that have paralleled the advancement of Local Government. Chapter Three traces the history of NSW Local Government, demonstrating its entrenchment in the political landscape. It examines major changes, especially functional expansion and managerial reform. Chapter Four scrutinises a particular aspect of municipal experience, namely top-down and bottom-up cooperation between neighbouring councils. This chapter adds consideration of state appointed regional bodies that may arguably sideline Local Government. The regional context is fundamental to environmental management due to the inappropriateness of many council boundaries. The next three chapters concentrate on legislative and financial detail. Chapter Five reviews the Local Government Act 1993 (NSW), which provides wide service powers, limited regulatory opportunity and special requirements for council-owned land. Chapter Six explores the land-use planning system under the Environmental Planning and Assessment Act 1979 (NSW), especially the ongoing influence of its urban background. It raises the perennial influence of ‘developmentalism’ in the determination of applications for development, which directly benefits property interests. Recent statutory change, especially in relation to ‘threatened species’ law, may do little more than support informed habitat destruction. A closely related matter is funding, as discussed throughout Chapter Seven. The issue goes beyond insufficiency. It is argued that Local Government’s primary financial source - i.e. rating, a property tax - works against biodiversity conservation. Not only is there no policy rationale to support rating in the conservation context but the system can provide a ‘perverse incentive’ to rural landholders to clear their lands. This problem is exacerbated by the type of valuation and differential rates. The system demands major overhaul, including consideration of increased conditional Commonwealth funding. The following two chapters relate to attitudes towards the biophysical environment that are popular amongst the general community. Chapter Eight considers the provision of vegetated, passive recreational open space whilst Chapter Nine deals with securing and enhancing local amenity. These approaches, however, can be directly inconsistent with biodiversity conservation. Parochial ‘green’ desires of local constituents can lead to environmental damage. Notwithstanding this, Chapter Ten provides some impressive examples of Local Government supporting biodiversity conservation. But these are isolated and rely on committed individuals. Whilst the pervasive prospect throughout this thesis is one of gloom, the concluding chapter builds on previous discussion by presenting ideas and recommendations to improve the role of Local Government in conserving biodiversity. It emphasises the need for regional approaches, improved funding mechanisms and fresh visions. Councils with bigger areas, supported by community structures to maintain ‘grass roots’ public participation, together with massive change to Local Government funding, may provide a desirable path for municipal reform and retention of Australia’s precious biodiversity. The law discussed throughout this work stands at 1 Jan 2003. Major changes since then are noted in the Postscript. ¹ See ch 1 at 2. ² On 31 Dec 2001, after hospitalisation for 9 days, the author was diagnosed as suffering from a malignant brain tumour, known as astrocytoma. It was removed in 2002, followed by heavy radiotherapy and chemotherapy, and a long period of torpor during which I lived the life a cat, sleeping for over twelve hours per day. I returned to this thesis in July 2002, then spending about 30 minutes per day which expanded over time, and recommenced part-time academic work in 2003. I am now convinced that I have left the cancer behind, being one of the fortunate 20% of astrocytoma sufferers to survive, supported by a medical team of professional excellence.