Legal challenge to NSW Government land-clearing Code

27 November 2017

The Nature Conservation Council of NSW (NCC), represented by public interest environmental lawyers Environmental Defenders Office NSW (EDO NSW), is bringing court action that challenges the validity of the Native Vegetation Code 2017, which enables private landholders to carry out large scale clearing of native vegetation without approval or environmental assessment. 

The EDO’s client, the NCC, is challenging the Code on two grounds: 

  1. Failure by the Minister for Primary Industries to get agreement from the Minister for the Environment before the Code was made, with the implied failure of the Minister for the Environment to act as custodian and guardian of the environment.
  1. Failure of both Ministers to have regard for the internationally-recognised legal principles of Ecologically Sustainable Development (ESD), particularly the precautionary principle, the principle of intergenerational equity and the conservation of biological diversity and ecological integrity.

“This challenge is being brought to uphold the rule of law,” said David Morris, CEO of EDO NSW.

“As public interest environmental lawyers we think this is a vitally important case to ensure proper legal process, especially when it concerns threatened species and biodiversity.

“When the NSW Parliament introduced the concurrence power in the Biodiversity reforms legislation of 2016, the Government specified that the Minister for the Environment must have an active role as custodian of the environment. The failure to get concurrence for this Code and its release before the publication of Native Vegetation Regulatory Maps suggests it was created in a rushed manner.

“Consequently, land clearing has been left to the discretion of individual landholders and it looks as though the Minister for the Environment has been just a rubber stamp. Ministerial involvement in the making of delegated legislation must be in accordance with the law.” 

Mr Morris continued: “Consideration of the legal principles of environmentally sustainable development is a fundamental requirement for the making of a Code like this and evidence suggests this has not occurred. 

“Clearing of native vegetation has been listed by the NSW Scientific Committee as a Key Threatening Process under the Biodiversity Conservation Act 2016, yet the Code allows broadscale clearing across NSW in the absence of any assessment of its likely cumulative impact on biodiversity or land or water resources”, Mr Morris said.

This is the first case to test the new provision of the Local Land Services Act which allowed for the making of the Code.

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