Australia: The resurrection of the - Avoid, Minimise, Offset - hierarchy: proposed reforms to tighten native vegetation controls in Victoria

The Victorian Department of Environment, Land, Water and Planning has recently released a consultation paper setting out a number of proposed reforms to the Victoria Planning Provisions. These reforms would introduce a greater degree of rigour to the assessment of permit applications seeking to remove native vegetation (particularly applications falling within the low risk assessment pathway).

The Review of the Native Vegetation Clearing Regulations Consultation Paper was developed after an initial phase of stakeholder consultation, and is now open for public comment.

The document identifies a range of improvements that could be made to requirements under the Native Vegetation Clearing Regulations, as well as improvements to the way in which the Regulations are administered.

The Consultation Paper can be viewed in full on the Department's website here.

The proposed structural changes of particular note are:

  • Proposal to reintroduce the 'avoid, minimise, offset' hierarchy
  • Before the Native Vegetation Clearing Regulations were introduced in late 2013, proponents seeking to obtain a permit to remove native vegetation were required to demonstrate that:

    • impacts on native vegetation were avoided where possible;
    • impacts on native vegetation were minimised where removal could not be avoided; and
    • for any native vegetation that was removed – offsets were provided.

    The 2013 Regulations removed the 'avoid' requirement. Proponents were only required to demonstrate that impacts on Victoria's biodiversity had been 'minimised'. In addition, only applications falling into the high and medium risk pathway were required to satisfy this condition.

    The Consultation Paper proposes to reintroduce the 'avoid, minimise, offset' hierarchy, regardless of risk category. In addition, all native vegetation permit applications would need to be accompanied by a statement setting out how biodiversity impacts have been avoided and minimised.

  • Proposal to restructure the risk-based pathways
  • The Regulations establish three risk-based pathways: high risk, medium risk and low risk.

    The Consultation Paper notes that a large number of permit applications are being processed under the low risk pathway, which is subject to more lenient assessment guidelines. The Paper also identifies a level of stakeholder confusion as to the differences between the medium and high risk pathways.

    The Consultation Paper proposes to address these issues by:

    • reducing the number of assessment pathways from three to two ('higher assessment' and 'lower assessment'); and
    • reducing the threshold for 'lower assessment' from one hectare / 15 scattered trees, to 0.5 hectare / 7 scattered trees, to ensure that a greater number of applications are assessed under the 'higher assessment' pathway.
  • Proposal to allow survey data for a site to supplement habitat importance maps
  • Permit applicants and advisers to the property industry have expressed frustration over the inflexible way in which the habitat importance map (HIM) is applied under the Regulations.

    Situations have arisen where high level modelled data (within the HIM) is used to determine the nature of the offset required in connection with a development, to the exclusion of survey data collected at the site.

    This can result in offsets being required for species that are not present on land. Conversely, sites which provide a suitable habitat for a species may be unable to be secured as offset sites.

    The Consultation Paper proposes to remedy this by allowing information collected at a site to supplement data in the HIM.

    • Clarification and expansion of the grounds for refusal

    A key component of the Native Vegetation Clearing Regulations is that they emphasise the contribution that a subject patch of vegetation makes to Victoria's biodiversity as a whole. In so doing, the Regulations de-emphasise the local importance of the vegetation. This effectively prevents a local council from refusing a native vegetation removal permit on the grounds that a patch is locally important.

    The Consultation Paper proposes to address this by including a decision guideline in clause 52.17 relating to whether vegetation is identified as having local biodiversity importance.

    It is also proposed that clearer guidance be provided to councils regarding when a permit should be refused (on the grounds that the proposal will have a significant impact on Victoria's biodiversity).

    In addition to those summarised above, a range of other measures are proposed, including measures to enhance the operation of the Victorian offsets trading market. Interestingly, the document contains no discussion in relation to the benefits or otherwise of introducing legislation to support the native vegetation credit market, in the mould of the failed Native Vegetation Credit Market Bill 2014.

Implications for proponents

If implemented, the proposals would introduce a greater degree of rigour for the assessment of native vegetation removal applications (particularly those at the lower end of the risk spectrum). There would include an expectation that vegetation removal should be avoided where possible.

The proposals would also introduce a level of flexibility in relation to the application of HIMs, which may enable development and offset sites hindered by the current rules to proceed.

Next steps

Submissions on the Consultation Paper are due by 29 April 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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