New legal challenge to land-clearing Code EDO NSW

FOI documents underpin new legal challenge to land-clearing Code

The Nature Conservation Council of NSW, represented by the Environmental Defenders Office NSW, has again commenced Court proceedings to challenge the validity of the Land Management (Native Vegetation) Code 2018, on the basis of documents received under freedom of information laws.

27 June 2018: The 2018 Code was made in March 2018 only hours after the Land and Environment Court, following the original challenge from the NCC, invalidated the 2017 Code.

“Our client’s decision to again challenge the validity of the Code in court was not taken lightly,” said David Morris, CEO of EDO NSW. “It took this decision because of the apparent failure, on the information available, of the Minister for the Environment to lawfully discharge her duty to consider the Code’s impacts to biodiversity.”

On the basis of the documents received under freedom of information laws, it appears that the Minister for the Environment failed to give proper, genuine and realistic consideration to the decision to grant concurrence for the making of the 2018 Code, and to the principles of Ecologically Sustainable Development (ESD), as required by law. The documents indicate that the Minister for the Environment did not have sufficient time or material to enable to her to make the decision and that as a result, the 2018 Code was made unlawfully.

“This is a remarkable state of affairs”, Mr Morris continued. “The legal regime makes it clear: the responsibility for ensuring that the Code does not have an unacceptable impact on the environment lies with the Environment Minister. The Code is predicted to have significant and far reaching impacts to biodiversity.

“These concerns are well known to the Government and have been the subject of substantial public controversy”, said Mr Morris. “The role of the Environment Minister outlined in the law is not one of rubber stamping, nor one of symbolism. Rather, it is the crucial check and balance to ensure the integrity of our State’s unique biodiversity in a changing climate.”

Given that the challenge to the 2017 Code did not proceed to a hearing before the Court, this will be the first case to test the new provision of the Local Land Services Act, which allowed for the making of the 2018 Code.

The proceedings are listed for a directions hearing before the Land and Environment Court on 13 July 2018.

Further detail on the Code

The 2018 Code is identical in nature to the 2017 Code. It allows landholders to carry out significant amounts of self-assessed clearing of native vegetation without further approval or environmental assessment, including in areas that might be home to threatened species and ecological communities. It doesn’t require any cumulative assessment of greenhouse gas emissions arising from clearing under the Code. Both clearing, and climate change, are listed under the Biodiversity Conservation Act 2016 as key threatening processes to biodiversity in NSW. Climate change is the greatest long-term threat to biodiversity in NSW.

While the 2017 Code was intended to be released with native vegetation regulatory maps to assist landholders to identify where clearing of native vegetation on rural can and cannot occur, those maps are yet to be released, which means landholders continue to be required to self-assess whether such land management clearing codes even apply to their land.  

If this case is successful, it will mean that there has not been a valid Code in force under the Act since the new native vegetation laws came into force. Given the ongoing legal uncertainty around the Code, any clearing done in reliance on the Code is potentially unlawful.  



The Environmental Defenders Office NSW (EDO NSW) is a community legal centre specialising in public interest environmental law. We help people who want to protect the environment through law.