The recent case of Secretary Department of Planning and Environment v Khouzame serves as a reminder of the stringent requirements surrounding the clearing of native vegetation.

Legislative Framework under the LLS Act
The Local Land Services Act 2013 (LLS Act) is designed to manage and regulate the clearing of native vegetation in New South Wales. The Act categorises land into two types: Category 1 (exempt land) and Category 2 (regulated land). Clearing native vegetation on Category 2 land, or regulated rural areas, is strictly controlled. Section 60N of the LLS Act prohibits clearing in these areas unless it falls under one of the following authorisations:

1. Allowable Activities: Clearing for certain low-impact activities as detailed in Division 4 and Schedule 5A (section 60N(1)(a)).
2. Land Management Codes: Clearing authorised by a land management (native vegetation) code (section 60N(1)(b)).
3. Panel Approval: Clearing authorised by an approval from the Native Vegetation Panel (section 60N(1)(c)).
4. Other Legislation: Clearing authorised under other legislation (section 60N(1)(d)).
5. Forestry Operations: Clearing as part of forestry operations under Part 5B (section 60N(1)(e)).

For land categorised as Category 2, any clearing activities that do not fall under these exemptions require explicit approval from the Native Vegetation Panel.

Court’s Reasoning in Khouzame’s Case
The Court found that Ms Khouzame’s clearing of 5.04 hectares of native vegetation on her property was unlawful under the LLS Act. The Court determined that Ms Khouzame cleared native vegetation without obtaining the necessary approvals, leading to significant environmental harm.

The Court’s reasoning was as follows:

1. Nature of the Offence – The clearing constituted a strict liability offence under section 60N of the LLS Act. Ms Khouzame’s actions were deemed negligent during the first tranche of clearing and reckless during the second tranche, especially after receiving official notices from the Council and the Department of Planning and Environment, highlighting the illegality of her actions. The Court determined that Ms. Khouzame had a clear disregard for the legal requirements and continued the clearing despite being aware of the prohibition (section 60N).
2. Environmental Impact – The clearing resulted in substantial environmental harm, including the removal of old-growth trees, loss of biodiversity, habitat destruction, and significant soil erosion. These actions directly contravened the principles of ecologically sustainable development outlined in the LLS Act (sections 60H and 60I). The Court noted that the environmental damage was severe and irreversible, further aggravating the offence.
3. Lack of Authorisation – Ms. Khouzame did not obtain any of the necessary authorisations for clearing under section 60N(1). The Court noted that had she applied for approval, the Native Vegetation Panel would likely have refused due to the significant impact on biodiversity values (sections 60N(1)(c) and 60N(1)(d)). The absence of an application for approval and the continuation of clearing without authorisation demonstrated a clear breach of the Act.
4. Judicial Commentary on Conduct – The Court criticised Ms Khouzame’s conduct, emphasising that landowners have a responsibility to ensure they understand and comply with environmental regulations. The Court highlighted that the legal framework is in place to protect ecological values and that ignorance or disregard of these laws cannot be excused.
5. Adverse Effects on Land Use Planning – The judgment pointed out that unapproved clearing disrupts land use planning and conservation efforts. The Court stressed the importance of maintaining regulatory controls to balance development with environmental preservation, underscoring the role of local councils and regulatory bodies in enforcing these laws.

Key Takeaway
Local councils and landowners should be aware of the legal obligations under the LLS Act and seek legal advice if uncertain about the regulations and their implications.

Further reading

You can access a copy of the judgment and the legislation below.

Click here to access the Local Land Services Act 2013