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.