this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Save on CPD.

LIV members enjoy discounts on all professional development.

Join Now
Select from any of the filters or enter a search term
Calendar
Calendar

Conservation: In the wake of the fires

Conservation: In the wake  of the fires

By Sarah Brugler

Environment Environmental Protection 

0 Comments


There are legal mechanisms available in Victoria that can be used to voluntarily protect biodiversity on private land.

Snapshot
  • The recent bushfires across the southern states of Australia are predicted to have devastated threatened species in these regions, where biodiversity was already in serious decline. 
  • Two thirds of Victoria’s land is owned privately. 
  • Private land conservation is therefore critical for stemming the decline of biodiversity in Victoria.

The amount of private land in Victoria permanently protected for environmental conservation purposes is growing each year. Amid improvements in the policy settings for this type of environmental action, this trend is likely to continue. The severity of the 2019/20 bushfire season has also placed the plight of Australia’s plants and animals and the importance of wildlife refuges at the forefront of people’s minds. 

Legal mechanisms for permanently protecting biodiversity on private land in Victoria can occur through conservation covenants (s3A of the Victorian Conservation Trust Act 1972 (Vic) (VCT Act)), s69 agreements under Conservation, Forests and Land Act 1997 (Vic) (CFL Act), s173 agreements under the Planning and Environment Act 1987 (Vic) (PE Act) and conservation agreements under s305 of the Environmental Protection and Biodiversity Conservation Act 1995 (Cth) (EPBC Act). These mechanisms are interchangeably referred to here as conservation agreements. 

This article seeks to provide lawyers with information on conservation agreements to assist in providing advice to clients who are purchasing land subject to, or entering into, these agreements. 

The need for voluntary conservation agreements.

One of the most comprehensive global biodiversity assessments undertaken to date presented a chilling outlook for global biodiversity. 

The Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) – an independent intergovernmental body established by UN member states – concluded that nature is declining globally at rates unprecedented in human history and the rate of species extinction is accelerating.1 Further, the IPBES found that up to 1 million species were at risk of extinction. This rate of decline is already having devastating impacts on people around the world. These impacts will very likely worsen considerably over time.

Even before the 2019/20 bushfires, Australia had the highest rate of mammal extinctions in the world and the fourth highest rate of animal extinctions globally. At the time of writing, the biodiversity impacts of this year’s bushfire season are still unknown, however, predictions are dire including that more than one billion animals will have been killed by bushfires2 and that around 70 threatened species have lost more than half of their habitat to bushfires.3

Victoria is the most densely populated state in Australia, the most cleared of native vegetation and, proportionally, has the smallest amount of public land.4 This makes conserving and reversing the trend of decline of biodiversity in the context of a changing climate, particularly challenging. 

No isolated law or policy will provide adequate protection to plants and animals, let alone reverse biodiversity decline. Arguably, what is needed is an array of well-integrated regulatory and policy measures that can manage cumulative threats to biodiversity and build resilience in ecosystem functioning, particularly in the face of climate change. Permanent conservation agreements are an example of a voluntary legal mechanism that provides secure environmental protection on private land. 

The policy setting for conservation agreements in Victoria

The Victorian biodiversity strategy (Biodiversity 2037)5 represents Victoria’s commitment to ensuring consistency with Australia’s Biodiversity Conservation Strategy 2010–2030 and international biodiversity agreements that include the Sustainable Development Goals (SDGs) adopted by UN member states in 2015. The most relevant SDG to private land conservation is SDG15 which seeks to improve biodiversity conservation on land and which is tied to the Aichi Biodiversity Targets (developed under the UN Conventionon Biological Diversity).6

For Victoria, Biodiversity 2037 has an overarching goal that “Victoria’s natural environment is healthy” – it seeks to deliver a “net improvement in the outlook of all species by 2037” with a specific target to conserve another 200,000ha of private land in perpetuity by 2037. This is significant because it is the first time Victoria has had a state-based focused and measurable policy setting that is related to private land conservation. 

It is also an ambitious target that will be difficult to achieve. Private landowners’ voluntary contributions will be a central determinant in whether this target can be met. 

The Commissioner for Environmental Sustainability in Victoria recently released the five-yearly assessment on the state of the environment7 and the only biodiversity indicator noted to be trending upwards was private land conservation. Despite this, the Commissioner noted that permanent protection of private land conservation is occurring at a slower rate than biodiversity loss on private land, and that additional resourcing is required to accelerate private land conservation.8

Given the existing policy settings and increasing need and focus on private land conservation, the practice of permanent protection of private land in Victoria is expected to increase. This is consistent with approaches in other states and territories, which have also introduced approaches for accelerating the use of conservation agreements on private land.

It follows that legal advisers will need to be aware of the practical implications for private landowners seeking to enter into a conservation agreement and understand why their client is seeking to voluntarily forego some of their property rights. 

Although reasons why landowners are motivated to enter into conservation agreements vary, they include: 

  • legacy motivations stemming from concern for the flora and fauna that live on their land
  • a desire to restore, improve and protect habitat for wildlife more broadly
  • strengthening of spiritual or historical connections with their land
  • improving understanding of ecological processes and conservation management techniques
  • building community bonds and becoming part of a joint effort to protect nature
  • the ability to access technical land management advice (though this assistance is not available in all circumstances). 

There are also financial benefits that could potentially apply to voluntary conservation agreements, including council rate relief, the potential application of s31.5 of the Income Tax Assessment Act 1997 (Cth) or a capital gains tax concession.9 In some cases, it may also be possible to secure third party offsets through a conservation agreement under the Victorian native vegetation clearing rules or EPBC Act (see below).

Options for in perpetuity conservation agreements in Victoria

In Victoria, there are currently legal mechanisms available for achieving long-term private land conservation that lawyers may encounter.

Conservation covenants

Landowners who enter into Trust for Nature (Victoria) (the Trust) conservation covenants are most often seeking to continue to live on and use their land, but ensure that the biodiversity on their property is protected even after they are no longer the owner. The Trust is established under the VCT Act and has broad powers under s3A of the Act. Landowners may enter into a voluntary conservation covenant with the Trust, subject to approval by the Minister for the Environment. Covenants can only be released or altered with approval from the Minister and by agreement between the Trust and the landowner (s3A(3)). Conservation covenants are registered on the title of the land and under s3A(11) – even though they can contain positive obligations, they bind all future owners.

A conservation covenant contains a set of restrictions and rights for a particular property in relation to future land-use activities. The covenant does not purport to replace existing planning and environmental laws, which remain operative. In addition, a conservation covenant does not prevent landowners from undertaking reasonable fire prevention works. It does, however, provide additional protection to the conservation values of the land above that provided by legislation. 

Where possible, the Trust covers establishment fees of a voluntary covenant including a contribution to ongoing stewardship for the monitoring of each covenant. A combination of philanthropic and government sources fund this work. 

To date, the Trust has registered more than 1400 covenants in Victoria, resulting in more than 65,000ha of private land permanently protected under covenant.10

The Trust also operates a stewardship program that monitors compliance, assesses environmental condition of covenanted land, and provides ongoing land management support for all landowners with registered covenants.

Section 3(2)(b) of the VCT Act also enables the Trust to buy and sell land. In exercising these powers, the Trust operates a revolving fund which acquires private land for the purpose of conservation. The Trust then on-sells the land with a condition of sale that the new owners enter into a conservation covenant. This type of property tends to appeal to buyers seeking a change from an urban to a rural/country setting. The revolving fund has resold more than 60 properties to date and protected more than 6500 hectares, with an overall capital value of around $4 million.11

Section 69 agreements and native vegetation offsets

The Secretary of the Department of Environment, Land, Water and Planning (DELWP) may also enter into conservation agreements with any landowner for – among other things – conservation purposes under s69 of the CFL Act. DELWP is responsible for administering s69 agreements which are not routinely used by DELWP as a voluntary conservation agreement. Currently, the best-known use of them is for native vegetation removal offsets. The Trust conservation covenants can also be used to secure both first and third-party offset sites. 

There are two ways in which s69 agreements or conservation covenants can be used for offsets. First, landowners may be seeking to establish a protected area on their land to offset the loss of native vegetation approved for removal under a permit on that site (first party offset). Second, landowners can establish a third-party offset site and register credits on the Native Vegetation Credit Register (also maintained by DELWP). The credits can be secured by a s69 agreement or a conservation covenant, which seeks to ensure that those credits are protected and then can be traded. Section 69 agreements and conservation covenants can also be used to fulfil requirements under Commonwealth environmental approvals. Not all high conservation land is suitable for a third-party offset and a technical assessment by a qualified expert will determine eligibility. 

The terms of s69 agreements can restrict certain land uses (s70 of the CFL Act) and they also often contain a list of management actions for the landowner to carry out over a specified period of time. The terms of each agreement will determine whether they are, or are not, binding on successors in title and they can be dissolved by the Secretary responsible for administering the CFL Act

The total offset cost is held by DELWP or the Trust, as the case may be, and distributed to the offset provider over a 10 year period, subject to the relevant land management conditions stipulated in the agreement being met. Payments to landowners providing offsets under a conservation agreement seek to cover the land management costs of the landowner as well as providing an incentive to ensure compliance and good environmental outcomes for the offset site. 

At the end of the 10 year payment period, the conservation agreement remains in place and the land remains protected under the conservation agreement. 

A discussion of the costs and challenges for landowners who are required to navigate the offset market and purchase third party offsets as a requirement of a planning permit is beyond the scope of this article. 

Section 173 agreements

Conservation agreements can also be entered into under s173 of the PE Act between a responsible authority and a landowner. Section 173 agreements are commonly used by councils when granting a planning permit, requiring the applicant to enter into a s173 agreement as a condition of the permit. They can be used by councils to impose restrictions on the use of the land, and the agreement can also impose positive obligations (s174 of the PE Act). Section 173 agreements are registered on title and can be used to ensure that permit conditions are enforceable against not only the permit applicant, but all subsequent owners of the land (s182 of the PE Act.

Although not the primary reason for use, councils do use s173 agreements when permanent protection of habitat is required under planning permit conditions. In this way they can be used to secure first party offset sites under the native vegetation clearing rules. However, they cannot be used for third party offset sites.12 Under s178A of the PE Act, they can be ended by the responsible authority and also by landowners on a successful application to the relevant responsible authority. 

EPBC Act conservation agreements 

The final potential legal avenue for binding protection in Victoria is conservation agreements under s305 of the EPBC Act, which are between the Commonwealth Minister for the Environment and Heritage and another person for the protection and conservation of biodiversity in an area of land or sea. EPBC Act conservation agreements are legally binding on the Commonwealth, all other parties to the agreement, and on successors in title of the land to which the agreement applies (s307 of the EPBC Act). Under s306(2) they can be for the ongoing protection of biodiversity and heritage values or be more specifically tailored to a series of actions for a threatened species or community. The duration of an agreement can vary according to s308(3)(b) of the EPBC Act, but could be in perpetuity. 

In Victoria, very few, if any, EPBC Act conservation agreements have been entered into over private land. This is partly because of the availability of better known and resourced mechanisms. 

Conclusion

As we face a rapidly changing climate and ever-increasing pressures on our threatened species, private land protected by conservation agreements will continue to grow in importance in Victoria. Private land protected by conservation agreements will not be immune to bushfire risk, but they will contribute to the wildlife refuges needed for healthy and resilient ecosystems that we all depend on. In this way, permanent protection of private land will be essential to reverse the trend of biodiversity decline and meet Victoria’s goal of achieving a healthy natural environment, which includes contributing a further 200,000ha of permanently protected private land. Conservation agreements also play a vital role in contributing to SDGs and Aichi Targets. 

The key tools to deliver permanent protection of biodiversity on private land are legal in nature and Victoria will need skilled legal practitioners to provide practical and informed advice to clients seeking to conserve the biodiversity values of their land in perpetuity, for the public good. Practitioners advising landowners who seek to enter into private land conservation agreements must ensure that they understand their client’s motivations and provide advice that is tailored to those motivations and aspirations for future land use. This will assist private landowners achieve these aspirations and contribute to the conservation of Victoria’s precious environment. ■


Sarah Brugler is legal counsel at Trust for Nature. She has previously worked in nature law reform for Environmental Justice Australia and ClientEarth in London. She also practised in commercial property law for Eversheds LLP (UK) and Henry Davis York.

  1. IPBES, 2019, Global assessment report on biodiversity and ecosystem services of the Intergovernmental Science – Policy Platform on Biodiversity and Ecosystem Services, ES Brondizio, J Settele, S Díaz, and HT Ngo (eds), IPBES Secretariat, Bonn, Germany.
  2. https://sydney.edu.au/news-opinion/news/2020/01/08/australian-bushfires-more-than-one-billion-animals-impacted.html.
  3. www.abc.net.au/news/2020-01-19/inside-the-race-to-protect-threatened-species/1187799.
  4. Commissioner for Environmental Sustainability Victoria 2013, Victoria: State of the Environment, Science Policy People, p68: www.ces.vic.gov.au/sites/default/files/publication-documents/2013%20SoE%20report%20full.pdf.
  5. Department of Environment, Land, Water and Planning Biodiversity (2017) Protecting Victoria’s Environment– Biodiversity 2037.
  6. For more information, see https://sustainabledevelopment.un.org/sdg15.
  7. Commissioner for Environmental Sustainability Victoria (2018) Victorian State of the Environment 2018 Report.
  8. Note 7 above, Recommendation 6 and the Biodiversity chapter. Future Focus.
  9. For more information, https://www.ato.gov.au/Non-profit/Gifts-and-fundraising/In-detail/Fundraising/Claiming-conservation-covenant-concessions/.
  10. Trust for Nature, Annual Report 2017-18.
  11. Note 10 above, endnote vii.
  12. See https://www.environment.vic.gov.au/__data/assets/pdf_file/0029/329456/First-party-offset-guide.pdf.

Views expressed on liv.asn.au (Website) are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV).

The information, including statements, opinions, documents and materials contained on the Website (Website Content) is for general information purposes only. The Website Content does not take into account your specific needs, objectives or circumstances, and it is not legal advice or services. Any reliance you place on the Website Content is at your own risk.

To the maximum extent permitted by law, the LIV excludes all liability for any loss or damage of any kind (including special, indirect or consequential loss and including loss of business profits) arising out of or in connection with the Website Content and the use or performance of the Website except to the extent that the loss or damage is directly caused by the LIV’s fraud or wilful misconduct.

Be the first to comment