Prosecutions for the unlawful clearing of native vegetation

Clearing native vegetation without the proper approvals can be a criminal offence. Landowners should therefore carefully consider whether approvals are required before undertaking any proposed clearing of native vegetation.

The act of clearing native vegetation tends to be very easy for a prosecuting agency to prove (especially if before and after photography is available), so any allegation of unlawful clearing carries a high risk of conviction.  Section 51C of the Environmental Protection Act 1986 (WA) (EP Act) makes it an offence to clear native vegetation unless a valid clearing permit authorises the clearing or the clearing is otherwise of a kind that is exempt from the requirement for a clearing permit.

For example, clearing to conduct firebreak management in accordance with the Bush Fires Act 1954 (WA) is exempt from the need for a clearing permit, but only where the clearing is directly related to compliance with that legislation (i.e. directly in response to the requirement to comply with a firebreak notice).¹

In addition, section 218 of the Planning and Development Act 2005 (WA) (PD Act) makes it an offence to commence, continue or carry out any development otherwise than in accordance with the applicable planning scheme.

Relevantly, ‘development’ in this sense has been held to include clearing.  See for example the decision of Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45.  In that case, the Court of Appeal held at paragraph [41] that whether an activity amounts to development will be a question of fact to be determined having regard to:

1. the degree of physical alteration to the land;
2. the degree of permanence of the physical alteration; and
3. all of the circumstances.

Clearing native vegetation protected under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) can also attract significant civil penalties and serious criminal sanctions.

If you are found to have cleared native vegetation without the required approvals, the fines connected with these offences can be significant.

Schedule 1 of the EP Act confirms that an individual who commits an offence pursuant to section 51C is liable for a maximum fine of $250,000 and, in the case of a continuing offence, a maximum further fine of $50,000 for each day during which the offence continues.  For bodies corporate, this maximum fine is $500,000, with a maximum daily fine of $100,000 for each day during which the offence continues.

Section 223 of the PD Act confirms that a person who commits an offence under section 218 is liable for a maximum fine of $200,000 and, in the case of a continuing offence, a maximum further fine of $25,000 for each day during which the offence continues.  Section 40(5) of the Sentencing Act 1995 (WA) (Sentencing Act) confirms that the penalty for a corporate offender is five times this amount (i.e. a maximum of $1,000,000).

In terms of a sentencing court reaching a determination on the appropriate amount for any penalty, section 6 of the Sentencing Act confirms that any sentence imposed must be commensurate with the seriousness of the offence, and should consider:

1. the statutory penalty for the offence; and
2. the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
3. any aggravating factors; and
4. any mitigating factors.²

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes

[1] See discussion in City of Kalamunda v ACN 605 729 995 Pty Ltd [2020] WASC 341.

[2] See consideration of the application of these factors in Stuart David Cowie v Bacopak Pty Ltd [2022] WASC 14.