Future referrals process for clearing of native vegetation

The Department of Water and Environmental Regulation (DWER) has released a draft Native Vegetation Referrals Guideline (Draft Guideline) which is open for public comment until 30 July 2021.

The Draft Guideline sets out a proposed referrals process for clearing of native vegetation that is intended to support amendments that are provided in the Environmental Protection Amendment Act 2020 (WA) (EP Amendment Act), and are anticipated to form part of Division 2 of Part V of the Environmental Protection Act 1986 (WA) (EP Act) later this year.

The proposed amendments to Division 2 of Part V of the EP Act are expected to streamline the current clearing permit application process by introducing a referral process as an optional preliminary step to be taken in advance of applying for a clearing permit (if required). This is intended to assist landowners and developers by significantly reducing the timeframe for clearing permit approval in circumstances where clearing proposed is unlikely to be contrary to the clearing principles in Schedule 5 of the EP Act.

In accordance with the proposed amendments, referrers will be notified by the relevant Department (DWER or the Department of Mines, Industry Regulation and Safety (DMIRS) in circumstances that the application relates to mining and petroleum activities) within 21 days of the referral advising as to whether or not their proposed clearing requires assessment. That said, the Draft Guideline makes the 21 day timeframe optional for the relevant Department, providing that if DWER or DMIRS has not contacted a referrer within 21 days, the referrer must simply wait until they do (or notify the relevant Department that they would like the referral to be treated as a clearing permit application).

In circumstances that DWER/DMIRS considers that assessment is not required, landowners and developers will then be able to clear native vegetation without a clearing permit. In circumstances that assessment is required, the referrer will be required to either proceed to submit a clearing permit application form or simply notify the relevant Department that it would like the referral to be treated as an application for a clearing permit.

Lavan comment

While the proposed referrals process has the potential to modernise and streamline the process for clearing native vegetation as intended, it may simply result in a duplication of processes, a lack of transparency and uncertainty for landowners and developers, particularly where the appropriate rigour is not applied to timing.

That said, the referrals process also has the potential to greatly assist landowners and developers insofar as providing certainty relevant to whether an exemption applies. In these circumstances, the amendments may be extremely beneficial as they ensure that a legislated process exists for determining whether an exemption applies, and accordingly, will have the potential to provide landowners and developers with greater agency (and result in fewer prosecutions).

Importantly, the proposed referrals process is optional and there will be nothing to prevent landowners and developers from continuing to rely on the current provisions of the EP Act, meaning that even where there is no particular benefit to the proposed amendments, there will also likely be no disadvantage to landowners and developers.

If you have any queries or concerns relating to proposed changes to the clearing application process under the EP Act and need assistance, feel free to contact any member of our experienced Planning and Environment Team.

Community schemes

The Department of Planning, Lands and Heritage recently published Operational Policy 1.11 Community Schemes and associated guidelines providing guidance on a new opt-in form of subdivision provided for in the Community Titles Act 2018 (WA) (CT Act), being community schemes.

By way of reminder, the new community schemes provisions in the CT Act allow for a flexible approach and facilitate more complex or mixed-use subdivision and development and the Operational Policy provides valuable guidance as to how these schemes can be incorporated in to new and existing subdivision/development proposals.