Victoria’s Native Vegetation Reforms released

DR ELIZABETH GIBSON, General Manager CMPA reports on the new Native Vegetation reforms.

A meeting was held with Jane Higgins, Manager Native vegetation Review and Ben Nam Senior Policy Officer Biodiversity Regulation Team from Department of Environment and Primary Industry (DEPI) on the released reforms to Victoria’s native vegetation permitted clearing regulations released on 22 May 2013 in which it was stated that the CMPA comments had been taken into account.

The following are issues with the current permit process that were raised during the consultation phase, generally, for the Native Vegetation Review.

Pre application – the system is complex to understand and navigate.

Application – this is costly and subjective where landholders are required to submit information on characteristics of the native vegetation to be removed. There is no clear guidance on how landholders demonstrate avoidance and minimisation.

Decision making – this is difficult to assess given the lack of guidance and also subjective.

If permitted, off set – high cost and difficult to source. The cost and difficulty of compliance makes enforcement difficult.

According to DEPI the reformed permit process has now been amended to:

Pre-application – system accessible and easy to understand.

Application – risk based pathways for assessment with application of mitigation based on risk and impact.

Decision making – there are clear decision guidelines regarding any mitigation requirements. There is a clear link between information provided and decision making process.

If permitted, off set – costs are designed to be proportionate to impact. Improved compliance with permit conditions due to proportionate outcomes and well functioning off set arrangements.

Additionally, DEPI claim that the key benefits of the reforms to the native vegetation permitted clearing regulations for your members include:

• upfront information about biodiversity values on land is provided by DEPI so informed investment and development planning decisions can be made. This includes minimising impacts on biodiversity and therefore minimising offsets costs, and planning for offset obligations
• mapped information is provided by DEPI about rare or threatened species habitat, reducing the need for costly and complex species surveys at sites
• new Guidelines provide a clearer understanding for what is required to comply with the native vegetation permitted clearing regulations, making approval processes more streamlined and decision making more consistent
• more offsetting options will make meeting obligations more straight forward and reduce delays

The following points need to be kept in mind:

The application process for:

• All areas < 0.5 hectares and areas ≥ 0.5 hectares and < 1 hectare, where the outcome is deemed ‘low risk’, have now been simplified with the introduction of a location risk map (location risk) and vegetation to be cleared (extent risk).
• ≥ 1 hectare, which would include native vegetation removal in all work authorities, the risk is deemed as moderate to high (depending on the location).

An on-line tool for calculation of low-risk off set requirements will be publicly available and in place in September 2013. The moderate to high risk off set requirements publicly available on-line tool will be available 2-3 months aft er this. In the interim, DEPI will undertake the calculation of moderate – high risk off set requirements. DEPI did not put a monetary value on underground resources when valuing off sets, i.e. DEPI did not recognize the value to the state of the resource to be extracted below native vegetation permitted to be removed and off set.

The following are comments by CMPA Associate Member Ken Norris (Norris & Schoeffel) on the changes. Unknowns:

• How long will a permit approval process take?
• Who does the on-ground determination of extent of ‘native vegetation’?
• Are the web-based data tools accurate?
• What is the procedure to challenge the DEPI calculation of offsets?
• What will be the real cost of the process to the earth resources industry?

Th e following points should be made:

• As with previous administrations, the present government continues to assume proprietorial rights over the assets of freehold property and demand payment for their use. As we have pointed out, this is the reverse of what common law and decency should allow.
• The definition of ‘native vegetation’ assessable under these new assessment guidelines has changed. Any land with native vegetation (as defined in the Planning Scheme) comprising at least 25% of perennial vegetation is now subject to assessment and probable offsetting. The previous definition was for assessable ‘native vegetation’ as any land with native vegetation (as defined in the Planning Scheme) comprising at least 25% of total vegetation. This probably means at least a doubling of the area of land now subject to offsetting.
• The review documents are vague on many aspects of the proposed regulations. What is the minimum area of ‘native vegetation’ subject to offsetting?
• The default scoring of ‘native vegetation’ value in the eye-in-the-sky database is mostly inflated from what would be an assessor’s score.
• The predictive mapping of ‘habitat’ for ‘rare or threatened’ species is speculative and frequently wrong.
• The claimed ‘robustness’ of the predictive algorithms are not born out in practice.
• In several places, the new regulations claim an ‘incentive’ feature, but nowhere is that explained or illustrated.
• The regulations reinforce the negative aspect of freehold land ‘native vegetation’ i.e. to most; ‘native vegetation’ is a liability on the balance sheet.

There is an unfunded compliance and enforcement aspect to off setting that will increase every year and will never succeed. For an example, look at the Vermin and Noxious Weeds compliance and enforcement outcomes.

EXAMPLE OF REGULATORY FAILURE

An example of the issues associated with Native Vegetation impacting on a CMPA member is given below and has been sent to John Lloyd the Red Tape Commissioner:

• Granted Permit by local council, in September 1978 to establish a gravel pit on own land.

• Needed to extend boundaries of quarry in 2009.

• Given option by Mines Inspector to either use Bush Broker or a Section 173.

• Decided to go with Section 173 through local council, as the Offset was going to be on the quarry owner’s land.

• Employed qualified person to conduct Native Vegetation Audit and Off set calculations.

• Had Offset surveyed and fenced etc.

• Work Authority and Work Plan Variation was approved October 2012.

• The Mines’ Inspector placed a condition on the licence – that there should be no clearing of trees until the offset was registered on Title.

• This prevented the quarry owner from extracting any material as the trees had to be removed to get to the gravel. Hence, no jobs could be tendered for.

• Placed all documentation with local solicitor to have Offset registered on Title in October 2012.

• Initially the local council didn’t want to do a Section 173 as they felt that they were not the appropriate authority.

• They said the Offset should be done by Bush Broker but the quarry owner was unwilling to start all over again. This would have meant more money for something that was already done.

• Negotiations between DPI and the local council seems like it might happen.

• Mines’ Inspector withdrew condition on the clearing of trees and allowed the trees to be cleared provided that the offset was registered on Title within 12 months. (6th May2013).

• Some trees have been cleared but the issue is still continuing.

• 12 months after Licence Variation was granted and 5 months into the 12 month proviso by the Mines’ Inspector and no further progress has been made.

Further information is available from http://www.depi.vic.gov.au/environment-and-wildlife/biodiversity/native-vegetation

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