Remediation Orders – What are they? And what happens if you get one?
Many landholders in NSW are unaware of their obligations in respect of land clearing. This is understandable given the number of changes to land clearing rules over the last decade and the complexity of those rules.
Instead of prosecuting people for land clearing offences, the Department of Planning, Industry and Environment (the Department) has preferred to issue Remediation Orders to landholders, but in many cases these orders are more damaging.
In recent months, we have seen an increase in the issue of Remediation Orders by the Department of Planning, Industry and Environment (the Department) for landholders of rural land in NSW for alleged land clearing offences under the Local Land Services Act 2013 (LLS Act).
This article summarises what a Remediation Order is, what you should do when you receive one, and your options to appeal it.
What is a Remediation Order?
Under the Biodiversity Conservation Act 2016 (BC Act), orders can be issued to landholders (or any other person believed to be responsible for land clearing) requiring them to carry out remediation work to the land if the Department is satisfied that an offence has been committed under the BC Act, the LLS Act (which applies to rural areas of the state), or the Forestry Act 2013. These orders can be imposed whether the landholder has been convicted of land clearing offences or not.
Remediation Orders specify various actions that a landholder must undertake to remediate the land, as well as actions to mitigate further damage from occurring.
As an example, Remediation Orders can require planting of native vegetation, fencing, and the ongoing submission of reports to the Department to ensure that the order is being complied with.
Importantly, the Department is imposing these orders for terms of between 10 and 30 years, which means that the cost of complying with them – and the reduction in property value as a result of them – can make it unviable to remain on the land.
What happens if I do not comply with a Remediation Order?
It is an offence to fail to comply with or contravene a Remediation Order, with significant financial penalties imposed on those guilty of the offence:
- If the landholder is a company, the maximum penalty is $660,000, plus a further $66,000 for every day that the offence continues.
- If the landholder is an individual, the maximum penalty is $132,000, plus a further $13,200 for every day the offence continues.
Can I appeal a Remediation Order?
Yes. A Remediation Order can be appealed to the Land and Environment Court within 30 days of receiving the order.
It is important to note that filing an appeal does not mean that the order ceases to have effect — landholders still need to comply with the requirements of the order until the Land and Environment Court states otherwise.
How can I avoid getting a Remediation Order in the first place?
Before doing any clearing of native vegetation, landholders should make enquiries with both their local council and Local Land Services (for rural land) as a starting point. This includes the clearing of any dead trees or groundcover (grasses and plants, etc).
If you have been issued with a Remediation Order, or you are concerned that you may be issued with one, you can reach out to Swaab’s planning team for a no-obligation discussion about your options.