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Allegedly illegal clearing in the Rapid Creek catchment again shines the spotlight on NT Planning Laws.

This week it was revealed that around 70% of a property in the Rapid Creek catchment had been cleared of native vegetation.  The clearing allegedly occurred without the consents required under the Planning Act (NT)(Act). 

Expert statutory planner, and EDONT volunteer, Katrina Shoobridge and EDONT Principal Lawyer, David Morris, discuss the operation of the Act, the Northern Territory Planning Scheme and the community’s ability to be involved in enforcement of the law.

1.   During media discussion about the alleged illegal clearing much was made about the application submitted for rezoning of the land.  Below we discuss the actual consequences of the rezoning.

Even if a rezoning assessment had been completed on the land in question, the act of rezoning does not automatically entitle a developer to assume their clearing objectives can be realised.  Subsequent clearing and/or development of the site involves at least one additional separate consent application process.  This additional consent process must be assessed on its own merits.  The developer in this instance is NOT ‘jumping the gun’-  that would suggest that the outcomes of both the rezoning, and the additional consent process, were a fait accompli.  It was therefore surprising to hear the Minister describe the actions of the developer this week as ‘jumping the gun’.

 2.   Is there any benefit in clearing before rezoning?

In many circumstances courts have found that developers have cleared vegetation to effectively ‘wipe the slate clean’ on a particular piece of land.   In those cases the courts have found the intent was to completely remove the site constraints, a consideration of which would otherwise have informed the layout, scale, form and function of development in any future Development Application on the land, post-rezoning.  While we do not make any comment about the intention of the developer in this case, we do note the comments of the Minister on the radio during the week: “I’m extremely disappointed in the actions of this developer, especially as they have been formally notified that approval will be needed prior to any clearing”.

3.   What guidelines assist the consent authority in deciding whether to allow native vegetation clearing in the Northern Territory?

The Northern Territory Land Clearing Guidelines 2010 found here:

(http://www.lrm.nt.gov.au/natveg/guidelines#.U0PkInQiPIU) are designed to assist developers and the Development Consent Authority to decide which areas of a site are suitable for development and which should be retained in their natural state.  The Guidelines apply to all native vegetation clearing in the Northern Territory, are referenced in the NT Planning Scheme and recognised under the Act.  In most instances, the Guidelines would be applied directly in consideration of a Consent Application involving clearing.  However, in the instance of a rezoning, the Minister would need to be satisfied that when the Guidelines are applied to any potential clearing on the site, suitable developable land remains that is able to meet the objectives and outcomes sought by the NT Planning Scheme for the new zone.  If consideration of the extent, quality and role (conservation/hydrological) of vegetation on the subject land finds that insufficient developable land area remains (or may remain in the absence of any detailed supporting information provided by the Applicant) – outside identified areas of vegetation significance – grounds exist for the Minister to refuse the rezoning.

4.   Are there covenant/offset options pre-clearing?

Northern Territory legislation includes mechanisms for the preservation of significant vegetation on a site in perpetuity through either a covenant or biodiversity offsets.  Both processes are voluntary.  The covenant process requires a Conservation Management Plan to be recognised under the Territory Parks and Wildlife Conservation Act (NT)(TWPC Act) and a covenant registered under the Land Titles Act (NT).  Biodiversity Offsets are generally proposed for large-scale mining projects as part of the EIS process.  Land tenure for offset areas may then be managed through a s74 agreement with the NT Government (under the TPWC Act) that the land be managed by NT Parks and Wildlife Commission; or for a non – government organization (NGO) to acquire the land for conservation management.

Since the above processes are voluntary, it is unlikely that either could be argued to be a reasonable and relevant condition on any Development Permit for clearing and/or development.  However, a developer may propose such measures as part of a project to demonstrate a commitment to the conservation of significant vegetation where the Development Consent Authority may otherwise be motivated to refuse an Application.  Such mechanisms can also provide an applicant with some certainty regarding the ultimate identified extent of developable land on their site, should a development not proceed in the form in which it was approved.

5.   What are the rehabilitation/offset options post-clearing

Section 75A of the Act details when it is an offence to clear vegetation and the monetary penalty. Pursuant to s78 of the Act, only the Development Consent Authority, or the Minister (or their representative), may prosecute.  Section 80 of the Act enables the Court to order a person who has breached the Act ‘to remedy the contravention or failure in the manner specified in the order’.  So although penalties involving rehabilitation/offsets are not specifically set out in the Act, where a case is accompanied by sufficient detail regarding the conservation and/or hydrological significance of the vegetation involved, there is a mechanism for the Court to order rehabilitation and/or offsets.

Enforcement – Absolute reliance on the Government? 

Unlike Victoria (for example), the Act does not provide any avenue of redress for the community to hold a developer to account for illegal clearing. In Victoria under section 114 of the Planning and Environment Act (1987)(Vic) any person can apply to the Victorian Civil and Administrative Tribunal for an enforcement order where land is used or developed in contravention of the Planning and Environment Act (1987)(Vic) (or a planning scheme or agreement made under that legislation).

Because Territorians do not have these type of rights, or the right to bring a private prosecution (as mention above) there is an absolute reliance on the Government to both investigate breaches of the law and enforce the law.  The head of the independent NT Environmental Protection Authority recently agreed, in relation to another matter, that all the guidelines and laws in the world don’t mean much if the regulator is not up to the task.  That is absolutely the case.

The burden of regulating breaches of the Act falls entirely on the Minister and the Consent Authority.  It is their responsibility to ensure that the developer, if they have in-fact acted illegally, feel the full force of the law.  In this case that would require pursuing a prosecution for offences under section 75A of the Act. In addition to a fine, the prosecution should request that the court make a substantial rehabilitation order, which it is empowered to do under section 80 of the Act.  The strength of any prosecution will be reliant on the quality of evidence obtained during the investigation.

In the NSW case of Stephen Garrett v Denniss Charles Williams [2006] NSWLEC 785 Preston J emphasised the importance of sentencing in matters of illegal clearing stating: “Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains” and further “The amount of the fine should be substantial enough so as not to appear as a mere licence fee for illegal activities. The sentence should create a disincentive to the harm envisioned by the statute”.