Saturday 7 April 2018


The Nature Conservation Council of NSW (NCC) had a short-lived victory in relation to the NSW Government's land clearing regulations last month when the Land and Environment Court found that they were invalid because they had been made unlawfully.  See the CVCC post on the NCC's media release about the court result.

The Environmental Defenders Office (EDO), which ran the case for the NCC, explained that the Minister for Primary Industries made a legal error in the making of the code.  He failed to obtain the concurrence of the Environment Minister, as he was legally required to do, before making the Code.

Commenting on the court decision,  the EDO's Chief Executive Officer David Morris said,"In conceding that they failed to follow due process, the Government gives the strong impression of making laws on the run. This is not simply a matter of incorrect paperwork.  Ecologically sustainable development is not just another box to tick - the Environment Minister has a legal responsibility to protect biodiversity in this state."

Following the court decision - and using the correct procedure this time -  the Government reinstituted the code without amendment.

Although the reinstatement was not unexpected, it was disappointing for the EDO and the NCC as it was done without addressing any of the serious concerns which were raised in the court challenge.

The second ground for the court challenge was that the Ministers for Primary Industry and the Environment did not take into account the legal principles of ecologically sustainable development as they are legally required to do.

This matter was not addressed by the court because, as the Government conceded the first ground, it did not have to answer the second ground for the court challenge.

Whether there is any possibility of a further challenge remains to be seen.