Other legislation and the Native Vegetation Act

Legislation other than the Native Vegetation Act 2003 (the Act) may affect the clearing of native vegetation in certain circumstances.

Examples of some of the legislation that may affect clearing of native vegetation are set out in the pages described below. Please note that these pages do not necessarily set out all approvals that may be required in relation to a particular clearing proposal. OEH recommends that you seek independent legal advice regarding your specific circumstances.

Native Vegetation Conservation Act 1997

The Native Vegetation Conservation Act 1997 (NVC Act) was repealed in 2005 with the introduction of the Act, however the NVC Act still has effect in relation to:

  • Clearing living native vegetation on State Protected Land in local government areas specified in Schedule 1 of the NVC Act (Sydney metropolitan and Newcastle local government area (but not Wollongong LGA)). Contact Sydney metropolitan or Newcastle councils for more information
  • Clearing exotic and dead trees on State Protected Land (apart from clearing in circumstances set out in guidelines approved and published by the Minister to enable clearing where no minimal environmental harm is likely).
  • Some private native forestry Development Consents issued under the repealed NVC Act.

Local government

The Native Vegetation Act 2003 (the Act) does not override any requirement to obtain consent from a local council where a local environmental plan (LEP) requires approval for the clearing of native vegetation under the Environmental Planning and Assessment Act 1979. However, once a Property Vegetation Plan (PVP) is approved or development consent is granted under the Act, any subsequent change to an environmental planning instrument cannot prohibit, restrict or otherwise affect the approved PVP or development consent.

Where council has granted development consent for a development, and clearing is required to undertake the development, then approval may also be required under the Act.

However, clearing for the purpose of a dual occupancy, a dwelling house, a secondary dwelling, a semi-detached dwelling or a rural worker’s dwelling that is carried out in accordance with a development consent required for the clearing will be a routine agricultural management activity (RAMA).  Clearing for development that is ancillary to these types of development, for example, building a swimming pool, is also a RAMA, as long as it is carried out in accordance with development consent. The Act requires that such clearing be to the minimum extent necessary and for the landholder to obtain any other approvals required for the building, work or structure before clearing.

Where land is rezoned so that it is subsequently excluded from the Act, any PVP, including approved clearing, offsets and management actions that applied to that land, continues to be binding on future owners of the land. Contact your local council or Local Land Services (LLS) for further advice.

For more information see the local government and native vegetation page.

Clearing using burning and herbicides

You may require approval under the Protection of the Environment Operations Act 1997 (POEO Act) for certain types of clearing that involve burning. Contact the NSW Rural Fire Service and your local council fire officer before work commences to determine your responsibilities under the POEO Act.

You may also require a licence under the POEO Act if there is a risk of contamination of any waterway with sediment or herbicide during clearing. Contact your local council in the first instance, or the Environment Protection Authority before work commences, to determine your responsibilities.

Aboriginal objects and places

Section 86 of the National Parks and Wildlife Act 1974 (NPW Act) contains a number of offences relating to harming Aboriginal objects or Aboriginal places, including:

  1. harming or desecrating an object that you know is an Aboriginal object (s86(1))
  2. harming an Aboriginal object (s86(2)) 
  3. harming or desecrating an Aboriginal place (s86(4)).

A defence to those offences is that the harm or desecration concerned was authorised by an Aboriginal heritage impact permit (AHIP) issued under section 90 of the NPW Act and the conditions of the AHIP were not contravened.

If an Aboriginal object is discovered during clearing, work must cease immediately. For more information on AHIPs issued under section 90 of the NPW Act see the Heritage registers.

Matters of national environmental significance

An approval under the Native Vegetation Act 2003 does not remove the obligation of landholders to obtain approval under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999  (EPBC Act), where necessary. 'Actions' that are likely to have a significant impact on a matter of national environmental significance, such as World or National Heritage Areas, Ramsar wetlands, nationally listed threatened species and ecological communities, and migratory species protected under international agreements, require approval under the EPBC Act. If a person proposing to take an action believes that it might have a significant impact on a matter of national environmental significance, they must refer the proposal to the Commonwealth Department of Environment to determine if an approval is required. Your local LLS or council can provide advice.

Page last updated: 27 March 2014