Case note: NCC v Min Primary Industries - EDO NSW

Case note: NCC v Minister for Primary Industries & Anor

In November 2017, the Nature Conservation Council of New South Wales (NCC) commenced judicial review proceedings in the Land and Environment Court of New South Wales (LEC) to challenge the decision of the Minister for Primary Industries to make the Land Management (Native Vegetation) Code 2017 (Code) under the provisions of the Local Land Services Act 2013 (LLS Act).

This would have been the first case to test the new provisions of the LLS Act, however the matter resolved before it went to hearing. On 9 March 2018, the LEC made orders, by consent, declaring that on and from 24 August 2017 the Code had been invalid and of no effect, and the decision to make the Code be quashed.

The Code was re-made in an identical form later that day. It came into effect on 10 March 2018.

By Meg Lamb, Solicitor EDO NSW

Originally published in Australian Environment Review, Vol 33 No 2, May 2018

Background: The decision to make the Code was made against the backdrop of the New South Wales’ Government’s new scheme for regulating biodiversity and vegetation clearing, which commenced in August 2016. These reforms, inter alia, saw the introduction of the Biodiversity Conservation Act 2016 (BC Act) and the Local Land Services Amendment Act 2016 (LLSA Act). The LSSA Act amended the LLS Act to insert the provision, which allowed the Minister for Primary Industries to make the Code, which purportedly came into force on 25 August 2017.

The LLSA Act, upon commencement, also repealed the Native Vegetation Act 2003 (NSW) (amongst other pieces of legislation) and replaced the methodology contained therein with four new self-assessable codes (for management, efficiency, equity and farm planning), collectively known as the Code. Amongst other things, the codes allowed for significant amounts of self-assessed native vegetation clearing without further approval or environmental assessment on areas of land known as “Category 2 – Regulated Land”[1], and permitted landholders to set aside areas on their properties to offset clearing elsewhere on their properties. In doing this, the codes effectively assumed that landholders would have the requisite ecological expertise to self-assess whether clearing was permissible under the codes, albeit with the assistance of regulatory maps, most of which had not been released at the time the Code came into effect. These maps still remain largely unpublished.

The new suite of biodiversity and land clearing reforms was intended to give effect to, and implement, the spirit and intent of the Final Report of the Independent Biodiversity Legislation Review Panel (IBLRP), which, in turn, would serve to decrease unnecessary regulatory burden for land management activities carried out by landholders, facilitate ecologically sustainable development (ESD), and deliver triple bottom line outcomes for agricultural development.

However, there were growing concerns that the new scheme was less stringent, less evidence-based, and was less accountable than the previous legislation, and was therefore likely to result in significant increases in clearing and corresponding loss of native vegetation and biodiversity in New South Wales. For example, Queensland University conservation biologist, Professor Hugh Possingham resigned from his position on the IBLRP, and as an advisor to the NSW Government, in November 2016 due to concerns that his recommendations were being ignored. In his resignation letter, Professor Possingham stated that the new biodiversity conservation package enabled farmers to clear hundreds of hectares of property without having to find equivalent areas of offsets to preserve biodiversity under so-called equity codes, and could lead to a doubling of broad-scale land clearing in the State.[2]

The New South Wales Parliament passed the laws, and the new regime commenced on 25 August 2016, with the Code coming into effect in August 2017.

Grounds: Upon the basis of information received under New South Wales freedom of information laws, NCC sought to challenge the Code on two grounds, namely that the Minister for Primary Industries failed to obtain the concurrence of the Minister for the Environment prior to making the Code (therefore meaning the decision was ultra vires), and that both Ministers failed to consider certain principles of ESD[3] when making, or giving concurrence to, the Code, as required by s 60T(2) and s 60T(3) of the LLS Act.  As both requirements were mandatory preconditions to the lawful exercise of power under s 60T to make the Code, NCC alleged that the failure to adhere to these provisions infected the decision with legal error, such that it amounted to jurisdictional error capable of invalidating the decision.

Prior to the hearing, the Ministers conceded on the first ground because it was clear from the documents that the Minister for the Environment granted concurrence to the Minister for Primary Industries one day after the Code was made, contrary to the requirement set out in s 60T(2). As a result, NCC was successful in its challenge, but did not have the opportunity to test its second ground. Here, the Ministers would have had to establish how it determined that reintroducing broad-scale clearing of native vegetation was consistent with the principles of ESD , including the precautionary principle, intergenerational equity, and ensuring that biological diversity and ecological integrity was a fundamental consideration.

In circumstances where clearing of native vegetation was listed by the New South Wales Scientific Committee as a Key Threatening Process under sch 4 of the Biodiversity Conservation Act 2016 (NSW), and the Code allowed for self-assessed broad-scale clearing across New South Wales without any assessment of the likely cumulative impact of the clearing on biodiversity, water or water resources, whilst also providing a defence to a number of offences under the Biodiversity Conservation Act 2016 (NSW)[4], NCC argued that consideration of the principles of ESD was critical to the development of the Code.

On the basis of the briefing notes provided to each Minister, NCC alleged that this did not occur, as the material before the Ministers did not include, inter alia, any substantive information relevant to the proper consideration of the principles of ESD, or any information evidencing or establishing the risk of serious or environmental damage which the Code would give rise to, despite being provided with information which, for example, indicated the Code was likely to cause an increase in clearing in New South Wales between 8% and 45%, and that less than 1% of identified koala habitat in New South Wales was protected from the Code. The Minister of the Environment also had material before her, which identified that some aspects of the Code were not consistent with the principles of ESD but did not identify what those aspects were, and that a number of provisions within the Code would not be formally monitored, and would be difficult to enforce.

Whilst it is now trite law that the principles of ESD must be considered in the context of New South Wales planning laws as an element of the public interest, it would have been interesting, especially in terms of the development of legal principle, to see how the Court approached this aspect of the case given the consideration of such principles is yet to be deliberated on in this context.

Outcome and Implications: On 9 March 2018, the LEC, by the consent of the parties, declared that the Code was invalid and of no effect, and made an order in the nature of certiorari quashing the decision to make the Code. The effect of such orders meant that any clearing, which had been carried out in reliance on the Code since 24 August 2017 had been done so unlawfully. While the Office of Environment and Heritage stated no compliance action would be taken against landholders who carried out clearing in accordance with the invalid Code[5], the Minister for Primary Industries re-made the Code later that day in any event. The Land Management (Native Vegetation) Code 2018 is identical in form, and came into force on 10 March 2018.

Conclusion: While this case illustrates one of the shortcomings associated with bringing judicial review proceedings, it highlights the pivotal role that freedom of information laws play in this State in ensuring transparency and accountability within Government, and also illustrates how challenging the failures of Government Ministers to adhere to the laws made by Parliament is a crucial part of defending democratic principles and the rule of law.

Thank you to Australian Environment Review for permission to republish this article.

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[1] For relevant definitions, see Local Land Services Act 2013, s 60D

[2] Letter from Professor Hugh Possingham to Mike Baird dated 30 October 2016, as cited in Hannam, P, 2016, Scientist Hugh Possingham quits over Baird government’s land-clearing plan

[3] as defined by the Protection of the Environment Administration Act 1991, s 6(2).

[4] Biodiversity Conservation Act 2016 (NSW), s 2.8

[5] Local Land Services, ‘New code paves the way for landholders to get on with the business of farming’ (Media Release, 9 March 2018)