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Legal challenge to NSW land-clearing codes

AT THE END of November the NSW Nature Conservation Council launched legal proceedings in the Land and Environment Court seeking to overturn controversial land-clearing codes made under the Local Land Services Act earlier this year.

“We are taking the Berejiklian government to court to scrap its destructive land-clearing laws, to defend nature and the rule of law,” council CEO Kate Smolski said. The council is represented by public interest environmental lawyers EDO NSW.

“These land-clearing laws are a matter of life and death for wildlife. They are degrading our soils and water supplies and driving species to extinction in regions across NSW.

“As the peak conservation organisation in NSW, we have an obligation to explore every avenue to defend nature against destructive laws, and that’s what we are doing.

“The rushed and potentially unlawful actions of two of the Coalition government’s ministers have put wildlife at risk and undermined the principles of good government in NSW.

“If our legal challenge is successful, the government should scrap these bad laws, go back to the drawing board and make new codes that actually protect our threatened species.”

The Nature Conservation Council, is challenging the government’s land-clearing codes on two grounds based on information obtained with Freedom of Information requests:

Failure to adequately consider the principles of Ecologically Sustainable Development

The Primary Industries Minister and the Environment Minister had a legal duty to consider the principles of Ecologically Sustainable Development when making the land-clearing codes.

That includes proper consideration of internationally recognised legal principles such as intergenerational equity, the precautionary principle, and conservation of biodiversity. Documents obtained under freedom of information laws suggest the ministers failed to do so.

Failure of the Primary Industries Minister to obtain concurrence of the Environment Minister

The Primary Industries Minister Niall Blair had a legal duty to obtain the “concurrence” ( the agreement) of the Environment Minister Gabrielle Upton before “making” the codes. Documents obtained under freedom of information laws suggest that Ms Upton approved the codes on August 25, one day after Mr Blair had made them on August 24.

“This is not how environmental law should be made in this state,” Ms Smolski said.

“More than 1,000 plant and animal species are at risk of extinction in this state, including the koala and 60 percent of all our native mammals.

“Land clearing is the main threat to many of these animals, and the land-clearing codes this government has introduced potentially unlawfully are pushing them closer to the brink.”

— NCC press release

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