Local government as a consent authority
The Native Vegetation Act 2003 (the Act) does not override any requirement to obtain consent from a local council where an approval for the clearing of native vegetation is required under an environmental planning instrument under the Environmental Planning & Assessment Act 1979 (EP&A Act).
In such situations approval under both Acts (dual consent) may be required unless the:
Additional information on dual consent provisions is available below.
Land excluded from the Native Vegetation Act
A full list of land excluded from the Act can be found at Schedule 1 of the Act. This includes:
- listed local government areas in the Sydney and Newcastle urban areas
- land within the following zones (not being land to which a property vegetation plan applies):
- in the case of land to which an environmental planning instrument made pursuant to section 33A of the Environmental Planning and Assessment Act 1979 applies—Zone RU5 Village, Zone R1 General Residential, Zone R2 Low Density Residential, Zone R3 Medium Density Residential, Zone R4 High Density Residential, Zone B1 Neighbourhood Centre, Zone B2 Local Centre, Zone B3 Commercial Core, Zone B4 Mixed Use, Zone B5 Business Development, Zone B6 Enterprise Corridor, Zone B7 Business Park, Zone IN1 General Industrial, Zone IN2 Light Industrial, Zone IN3 Heavy Industrial, Zone IN4 Working Waterfront, Zone SP2 Infrastructure or Zone W3 Working Waterways,
- in any other case—a zone designated 'residential' (but not 'rural-residential'), 'village', 'township', 'industrial' or 'business' under an environmental planning instrument or, having regard to the purpose of the zone, having the substantial character of a zone so designated.
lands used for the development of seniors housing under the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 and for which a site compatibility certificate has been issued.
national parks and other conservation areas
The Act also contains provisions to exempt additional land use zones from the operation of the Act provided that the additional land use zones have substantially the same character as a zone already excluded under Schedule 1 of the Act.
This exemption is done by an application to the Chief Executive of the Office of Environment and Heritage (as delegate to the Director-General of the Department of Premier and Cabinet).
Section 25 of the Act lists a number of clearing activities that are excluded from the operation of the Act because they are authorised by other legislation. Of these the most significant excluded clearing activities for local government and public authorities are:
Dual consent (NV Act and EP&A Act)
The Native Vegetation Act 2003 (the Act) does not override any requirement to obtain consent from a local council under the Environmental Planning and Assessment Act 1979. Furthermore, a consent granted by local council under Part 4 of the EP&A Act does not negate the need to obtain an approval under the Native Vegetation Act unless otherwise excluded or exempted by the Act or its regulations.
Once a Property Vegetation Plan (PVP) is approved, any subsequent change to an environmental planning instrument cannot prohibit, restrict or otherwise affect the approved PVP. Although rarely used, it is also possible for Local Land Services (LLS) to issue a development consent under the EP&A Act instead of a PVP. In such cases, any subsequent change to an environmental planning instrument cannot prohibit, restrict or other affect any development consent issued by the LLS.
Information for councils and landholders on land to which an approval under the Act has been granted can be found on the public register. The existence of a PVP on land will be included on planning certificates issued by local councils (section 149 certificates).
Where land is rezoned so that it is subsequently excluded from the Act any agreed PVP, including approved clearing, offsets and management actions that applied to that land, continue to be binding on future owners.
Rezoning of land may result in approval to clear native vegetation being required depending on whether the new zone falls within the scope of the Act.
Local Government as a land manager
The Act contains a large number of activities on both private and public land that are considered Routine Agricultural Management Activities (RAMAs). RAMAs are exempt from the requirement for approval under the Act.
Clause 33 of the Native Vegetation Regulation 2013 (the Regulation) provides for the crown land and council management infrastructure RAMA. This RAMA applies to the construction, operation and maintenance of infrastructure by local government including reserve trusts (along with other public land managers) in the exercise of their land management activities.
Activities covered by this RAMA include picnic and bbq facilities, roads, tracks, viewing platforms and signs.
Local Government as a provider of local infrastructure
Clause 34 of the Regulation provides for that certain infrastructure works undertaken by a Council is a RAMA (known as the council infrastructure works RAMA). This RAMA has recently been changed to limit the provision to gravel pits and cemeteries. This was done because many of the activities previously covered by this provision were otherwise exempt because they were covered by an approval under Part 5 of the EP&A Act.
The local government infrastructure works RAMA:
limits the clearing for cemeteries to no more than 2 hectares
limits the area of clearing for gravel pits to no more than 5 hectares for land in the Western Division, and 2 hectares for other lands
Previous requirements that managed areas be set aside for both cemeteries and gravel pits under this RAMA have been removed and a new requirement has been introduced requiring Councils revegetate the gravel pits following clearing.
Neither the Crown land and Council infrastructure RAMA or the council infrastructure works RAMA authorise clearing of native vegetation that is a threatened species or a component of a threatened population or threatened ecological community. The Crown land infrastructure RAMA additionally does not permit clearing of the habitat of a threatened species.
Proposals for that exceed these size limits should be discussed with the relevant LLS.
Other public authorities
In some circumstances, the Act may also have implications for public authorities. All activities determined under Part 5 of the EP&A Act are exempt from the Act and do not require separate approval under the Act provided the determining authority has complied with Part 5.
In addition, some land management activities by public authorities may be covered by the crown land and council management infrastructure RAMA – see above. Other RAMAs may be available to public authorities.
However, any proposal by a public authority that requires development consent may require separate approval under the Act unless otherwise exempted by the Act and its regulations. Public authorities are advised to check with their LLS in such situations.
Page last updated: 26 August 2014