Environment and planning law

All the administrative systems and bodies of law discussed in this chapter are relevant to the protection of natural environments and built environments. The activity complained about might require planning permission, or an environmental impact assessment or environmental protection permission. All these legal processes have enforceable opportunities for input by members of the community, as described above.

Other laws specifically designed to protect nature and natural areas include the EPBC Act, Flora and Fauna Guarantee Act 1988 (Vic) (‘FFG Act’), Wildlife Act 1975 (Vic) and National Parks Act 1975 (Vic).

In 2019, the Victorian Government established the Officer of the Conservation Regulator (OCR) within DEECA. The purpose of the OCR is to provide a central point of coordination and oversight for DEECA’s regulatory functions. These include regulating natural environments, logging, public land use, fire prevention, wildlife and biodiversity. Information about the OCR’s work and responsibilities is available at www.vic.gov.au/ about-us-conservation-regulator.

The need to obtain a planning permit to remove native vegetation (clause 52.17 of all Victorian planning schemes) is an important part of the framework of nature protection laws in Victoria (see www.environment.vic.gov.au/native- vegetation/native-vegetation-removal-regulations). Guidelines on the removal, destruction and lopping or native vegetation were incorporated into the planning scheme in 2017. In the assessment of permit applications, there is now greater emphasis on avoiding the removal of vegetation. Other environmental protection measures contained in overlays (e.g. the vegetation protection and environmental significance overlays) are also important elements in the framework.

Many natural systems and habitats are in the state’s forests and on public land, but outside national parks or reserves, and are vulnerable to logging operations. Actions under the national system of regional forest agreements (RFAs) negotiated under the Regional Forest Agreements Act 2002 (Cth) are exempt from EIA under the EPBC Act. However, the EPBC Act review found that RFAs offer a lower level of protection than the EPBC Act for other matters of national environmental significance and there is insufficient Commonwealth oversight of the RFAs. It recommends an increase in the level of environmental protection afforded in RFAs by immediately requiring, as a condition of any accredited arrangement, states to ensure that RFAs are consistent with the National Environmental Standards and to amend the EPBC Act to replace the RFA ‘exemption’ with a requirement for accreditation against the National Environmental Standards, with the mandatory oversight an Environment Assurance Commissioner.

Forestry operations are carried out under the Forests Act 1958 (Vic), Sustainable Forests (Timber) Act 2004 (Vic), Conservation, Forests and Lands Act 1987 (Vic) and various regulations, codes and management plans made under them.

RFAs were intended to establish a substitute conservation regime for forests in which logging occurs. The EPBC Act does not apply to forestry operations if a RFA is in force, which means the conduct of forestry operations is governed solely by the RFA regime and is exempt from the state’s environment laws.

Specific provision is made for third-party enforcement of planning schemes (see ‘Enforce- ment’, above). However, in most cases, Victorian nature protection laws do not include specific provisions that enable enforcement by individuals or environment organisations. In these cases, challenging a failure to comply with these laws may be possible at common law by way of judicial review of government decision-making – although such legal action is expensive and complicated as it must be heard in the Supreme Court.

Multiple cases have been run and won by individuals or environment organisations alleging unlawful logging by Vicforests (the state body that, along with DEECA, oversees logging operations); see for example Warburton Environment Inc v VicForests (No 5) [2022] VSC 633 and Environment East Gippsland Inc v VicForests (No 4) [2022] VSC 668 among many others.

In 2022, amendments to the Sustainable Forests (Timber) Act 2004 introduced ‘harvesting safety zones’, purportedly to reduce the use of ‘dangerous forest protest tactics’ (but many other activities are also criminlised). The changes criminalised peaceful protest practices such as erection and occupation of ‘tree-sits’, locking onto active timber harvesting machinery and using camouflage to run in and out of the zones from surrounding bush. The amendments also expanded search and seizure powers in these zones, obstruction offences, banned certain individuals from the zones and increased penalties. (For more information about protesters’ rights, see Chapter 11.4: Community activism.)

The Victorian Government ended native forest logging on 1 Jan 2024.

On 1 June 2020, amendments to the Flora and Fauna Guarantee Act 1988 (Vic) (‘FFG Act’) commenced. These are the most substantial changes made to the FFG Act since it was first enacted.

The amendments update the FFG Act in some important ways. The amendments:

• revise and expand the objectives of the FFG Act, which now include a focus on both preventing species and ecosystems from becoming threatened, as well as enabling their recovery;
• include new principles guiding the FFG Act;
• include a new comprehensive duty on public authorities to give ‘proper consideration’ to the objectives, to a biodiversity strategy made under the FFG Act, and to other matters;
• update the listing process for threatened species and communities making it similar to national and international listing arrangements;
• update and clarify conservation tools such as critical habitat and conservation orders; and
• provide new enforcement measures including enforceable undertakings. The FFG Act now provides additional legislative guidance on the use of conservation measures, such as critical habitat determinations and various forms of conservation agreement, although use of these measures remains discretionary. New regulations have been made governing threatened species listing but further regulation or guidance on other matters have not. An independent review of the Wildlife Act 1975 commenced in April 2021. The review was established to consider the Act’s objectives and scope, whether the Act establishes a best-practice regulatory framework for achieving its objectives, whether the Act appropriately recognises and protects the rights and interests of Traditional Owners and Aboriginal Victorians in relation to wildlife and their role in decision-making, and the best way to encourage compliance with the Act, including whether offences and penalties are appropriate. The panel’s final report was provided to the government in December 2021. At the time of writing, the government was yet to publish the report or its response. Further information can be found at www.wildlife.vic.gov. au/wildlife-act-review and www.engage.vic.gov.au/ independent-review-victorias-wildlife-act-1975