Environmental Protection (Clearing of Native Vegetation) Regulations 2004

Several key concepts underpin the operation of these regulations. "Native vegetation" is defined in section 51A of the Act, but regulation 4 clarifies that indigenous aquatic or terrestrial vegetation that was intentionally planted is also native vegetation if the planting was funded wholly or partly by a person other than the landowner for biodiversity conservation or land conservation, or if a conservation covenant or other binding undertaking is in effect. This prevents landowners from circumventing permit requirements by planting native species and later clearing them. "Prescribed clearing" is the central mechanism: clearing that falls within one of the 26 items in the Table to regulation 5(1) is exempt from needing a clearing permit, provided it is done by or with the prior authority of the listed person and is carried out so as to limit damage to neighbouring native vegetation. The concept of "limited clearing" is defined as clearing described in items 1, 5, 6, 7, 10, 12, 13 or 19 - generally small-scale clearing for buildings, firewood, fencing materials, woodwork, fence-line access, vehicular and walking tracks, and isolated trees. A critical limit is that limited clearing must not exceed 5 hectares in aggregate on the same property in the same financial year. "Property" is defined as an area of land managed as a single property, whether or not comprising multiple titles, so a landowner cannot split clearing across titles to avoid the 5 ha cap. "Riparian vegetation" - the distinctive vegetation associated with a wetland or watercourse - is heavily protected: many items (1, 12, and Schedule 1 clause 3) prohibit clearing of riparian vegetation or require that clearing limit or avoid indirect harm to it. "Environmentally sensitive area" was defined in regulation 3 but that definition ceased to have effect under regulation 9 on the day the first Ministerial notice under section 51B of the Act came into operation; that notice has not been published, but the term remains relevant for applications under the Act. Other important defined terms include "bioregion" (using the Interim Biogeographic Regionalisation of Australia 2000), "intensive land-use zone" (from a 2001 Department of Agriculture report), "building", "fence", "fire hazard reduction burning", "fire risk reduction area", "sight line area", and "utility" - which is exhaustively listed to include specific corporations such as AlintaGas, Main Roads, Telstra, Water Corporation, Electricity Networks Corporation, Regional Power Corporation, and the Public Transport Authority. "Aboriginal person" has a three-pronged test: descent, self-identification, and community acceptance. The schedules introduce further concepts: "scrape and detect operation" in Schedule 1; "lateral clearance area", "crossover area", and "transport corridor infrastructure" in Schedule 2; and "sight line area" for roads in Schedule 3.

The regulations affect any person who proposes to clear native vegetation in Western Australia, but they are especially relevant to landowners, occupiers, utilities, mining and petroleum companies, local governments, State government authorities, and Aboriginal persons. Landowners and occupiers are the primary audience for the limited clearing items: they may clear up to 5 ha per financial year for buildings, firewood, fencing materials, woodwork, fence-line access, vehicular tracks, walking tracks, and isolated trees, provided they meet the conditions in each item. Utilities - specifically the entities listed in the definition of "utility" - are authorised to carry out infrastructure maintenance activities under Schedule 3 within strict time limits (12 or 18 months after commencement of Part 9 of the amending Act in 2004) and under debris-removal obligations. The Commissioner of Main Roads, the Public Transport Authority, local governments, and other entities responsible for roads and railways are affected by items 21, 21A, and 22 (bypass roads, crossovers, and maintenance in existing transport corridors) and must comply with the extent of clearing limitations in Schedule 2. Holders of authorities under the Mining Act 1978 and various Petroleum Acts are affected by items 20, 24 and 25; they can clear without a permit only if the activity is low impact (Schedule 1) and not in a non-permitted area, or if the clearing is within 10 ha per financial year in an authority area under clause 2(2) of Schedule 1 - and even then riparian vegetation and water quality protections apply. Licensed surveyors are affected by item 9. Aboriginal persons are affected by item 8, which allows clearing for cultural or spiritual (non-commercial) purposes on land to which they have a cultural or spiritual connection and a right of access; the connection is determined according to the traditions, observances and customs of the person's community. Persons applying for clearing permits (area permits or purpose permits) are affected by the fee schedule in regulation 7, which varies by application area and whether any part falls within the intensive land-use zone. All persons submitting documentation to the CEO in relation to a clearing referral or permit are affected by the confidentiality provisions in Part 3, which allow them to request non-publication of trade secrets or commercially valuable confidential information, and require the CEO to keep bank account numbers confidential automatically.

The regulations confer a right to clear native vegetation without a permit if the clearing is of a prescribed kind and all conditions in the relevant item are satisfied. The conditions are numerous and specific: for example, item 1 (clearing to construct a building) requires the site to be for lawful construction, the clearing to be to the extent necessary, the vegetation not to be riparian, and the aggregate limited clearing on the property in that financial year not to exceed 5 ha. Item 2 (accidents or danger) requires the clearing to be for preventing imminent danger to human life or health or irreversible significant environmental damage, or to result from an accident caused without negligence of the clearer. Item 3 (fire hazard reduction) requires the burning to occur outside prohibited or restricted burning times under the Bush Fires Act 1954 and to be done so as to minimise long-term environmental damage. Item 5 (firewood) prohibits killing live vegetation or preventing regrowth, requires the firewood to be unobtainable from already-cleared vegetation, and is subject to the 5 ha aggregate cap. Items 5, 6, and 7 (firewood, fencing materials, woodwork) share the "no killing live vegetation" condition, meaning only dead wood or coppicing is permitted. Item 10 (fence line on alienated land) limits clearing to the width necessary for access to construct or maintain a fence. Item 12 (vehicular tracks) imposes a 100 m distance from other cleared land that could serve the same purpose, prohibits clearing in road reserves, and restricts clearing of riparian vegetation unless there is no reasonable alternative and the track is necessary for commercial activities. Item 19 (isolated trees) defines the tree area as its drip line and requires the tree to be more than 50 m from any other native vegetation in an otherwise cleared area. The duty to limit damage to neighbouring native vegetation applies to all prescribed clearing under regulation 5(1)(c). For persons who must apply for a permit, duty holders include the obligation to pay the prescribed fee - $400 to $10,000 for area permits depending on size and location in the intensive land-use zone; $2,400 to $12,000 for purpose permits (base $2,000 plus area-based variable component). The CEO has a duty to keep public records of applications, permits, undertakings, notifications, surrenders, revocations, and suspensions (regulation 8), and to keep public records of information and documents given in response to notices under sections 51E(1A), 51KA(2), and 51MA(3) (regulation 8A). Under Part 3, the CEO must refrain from publishing any BSB or bank account number (regulation 12), and may refrain from publishing personal information, precise locations of threatened species, priority-listed species, breeding areas, and Aboriginal sites (regulation 13). A person submitting documentation has a right to request confidentiality of trade secrets or commercially valuable confidential information (regulation 11), and the CEO must not publish that material if satisfied it contains such confidential material; even if not satisfied, the CEO may still refrain from publishing if satisfied it is desirable due to its confidential nature.

The regulations themselves do not create penalties for unauthorised clearing; penalties for clearing without a permit or in breach of permit conditions are found in the Environmental Protection Act 1986. However, the regulations provide mechanisms for enforcement that support the Act. Under section 51L of the Act, the CEO may revoke or suspend a clearing permit, and regulation 8(8) requires the CEO to keep a public record of the permit holder's name, permit identification number, grounds for revocation or suspension, and the date. The CEO also has power under regulation 7(4) to reduce, waive or refund, in whole or part, any fee referred to in the regulations - this gives administrative flexibility but may be used as a deterrent if non-compliance entails loss of fee waivers. The regulations also impose conditions that, if breached, may render the clearing unlawful even if it was originally prescribed. For example, if a landowner clears for a building under item 1 but exceeds 5 ha of limited clearing in the financial year, the entire clearing becomes unlawful and may attract the Act's penalties. Similarly, if clearing for fire hazard reduction is carried out during restricted burning times, the exemption is lost. The requirement in regulation 5(1)(c) that all prescribed clearing be done so as to limit damage to neighbouring native vegetation is a mandatory condition; failure to comply means the clearing is not of a prescribed kind and therefore requires a permit. The regulations also contain temporal limits: for example, item 17 (clearing under Country Areas Water Supply Act licence) required the licence to be granted before Part 9 commenced and clearing within two years; item 23 (infrastructure maintenance) required activities to be completed within 12 or 18 months of the commencement of Part 9 - now long expired. Schedule 2 clause 2(2) imposes a condition on reliance on previous clearing: the previous clearing must have occurred within 10 years and must have been lawful, or the person clearing must not know and cannot reasonably be expected to know that it was unlawful. If a person clears in reliance on previous clearing that was unlawful and the person knew or ought to have known, the exemption is not available. The CEO's public record of revocations and suspensions (regulation 8(8)) serves as a deterrent and transparency measure.

The regulations explicitly cross-reference a wide range of other Western Australian and Commonwealth statutes. The most significant is the interaction with the Mining Act 1978 and the three Petroleum Acts (Petroleum and Geothermal Energy Resources Act 1967, Petroleum Pipelines Act 1969, Petroleum (Submerged Lands) Act 1982). Items 20, 24 and 25 allow clearing without a permit for low-impact mineral or petroleum activities (Schedule 1) and for prospecting or exploration under those Acts, provided conditions are satisfied. Schedule 1 also excludes clearing from non-permitted areas which include bioregions, alienated land, occupied townsites, conservation areas, Crown land under care and control of the Water and Rivers Commission, water supply areas, riparian vegetation, coastal zones, environmentally sensitive areas, and areas described in "Wild Rivers of Western Australia" and "Red Book areas". This means mining and petroleum companies must navigate both their tenure statutes and these regulations. The Rights in Water and Irrigation Act 1914 is referred to in item 16 (clearing under permits or approvals under sections 11, 16, 17 or 21A) and in Schedule 1 clause 1a (licence under section 5C or 26D for mining/petroleum purposes). The Country Areas Water Supply Act 1947 appears in item 17 (transitional clearing licence) and in the definition of water supply area in Schedule 1. The Soil and Land Conservation Act 1945 and Soil and Land Conservation Regulations 1992 are referenced in item 26 (clearing in accordance with a notice of intention given before Part 9 commencement). The Bush Fires Act 1954 is referenced in item 3 for fire hazard reduction burning times. The Aboriginal Heritage Act 1972 is referenced in regulation 13(1) for the definition of Aboriginal site, which the CEO may keep confidential. The Biodiversity Conservation Act 2016 is referenced for definitions of native species, species, threatened species, and priority lists in regulation 13(1). The Swan River Trust Act 1988 is referenced in item 18 but has been repealed (note 1). The Land Administration Act 1997 definitions of alienated land and Crown land are incorporated. The Transfer of Land Act 1893 and National Trust of Australia (W.A.) Act 1964 are referenced in regulation 4(1)(b) regarding conservation covenants. The interaction with the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 is indirect: regulation 13(2)(b)(iii) refers to a "listed threatened species as defined in the Commonwealth Environment Act section 528". The regulations also interact with the main Environmental Protection Act 1986: they implement sections 51A, 51C, 51E(1)(c), 51M(1)(b), 51Q, and 122B, and must be read together with the Act's permit system and penalty provisions.

The regulations were originally gazetted on 30 June 2004 and came into operation on 8 July 2004. Since then, there have been at least 16 amendment instruments. The first three in 2005 adjusted items in the Table and schedules: Amendment Regulations 2005 (21 Jan 2005), No. 2 2005 (24 Jun 2005) - which amended Schedule 1 and Schedule 2, and No. 3 2005 (23 Dec 2005) - which further amended Schedule 1. In 2006 three sets of amendments occurred: the Environmental Protection (Clearing of Native Vegetation) Regulations 2006 (6 Jan 2006) inserted new definition and minor changes; Amendment Regulations No. 2 2006 (31 Mar 2006) amended utility definitions to reflect electricity corporations; Amendment Regulations No. 4 2006 (7 Jul 2006) amended the Table in regulation 5 to add items 21-22 and revised Schedules 2 and 3, notably restricting Schedule 2 maintenance clearing to "previously cleared" areas and adding cross-over provisions. The Electricity Corporations (Consequential Amendments) Regulations 2006 (31 Mar 2006) amended the definition of utility. In 2007 two amendments occurred: Amendment Regulations 2007 (30 Mar 2007) amended Schedule 1 water supply area references; Amendment Regulations No. 2 2007 (22 Jun 2007) amended item 22 to include crossover area. In 2008, Amendment Regulations 2008 (10 Jun 2008, operative 11 Jun 2008) amended the Table items 16, 18, 20, 21, 22, 25 and the schedules, primarily updating cross-references. In 2013 two amendments: Amendment Regulations 2013 (18 Nov 2013) further updated Schedule 1 water supply areas; Amendment Regulations No. 2 2013 (4 Dec 2013) amended the Table items 20 and 25 and the schedules. In 2019, Amendment Regulations 2019 (1 Jul 2019) substantially rewrote regulation 7 (fees) to introduce a new two-column fee table based on whether the application area falls within the intensive land-use zone, and increased fee amounts significantly. The most structural change came in 2021: the Environmental Protection Regulations Amendment (Publication and Confidentiality) Regulations 2021 (23 Oct 2021) inserted a new Part 3 (regulations 10-13) dealing with publication and confidentiality, and inserted new regulations 8 and 8A to update public record requirements. In 2023 two amendments: Environment Regulations Amendment (Aboriginal Cultural Heritage) Regulations 2023 (1 Jul 2023) and Environment Regulations Amendment (Aboriginal Heritage) Regulations 2023 (15 Nov 2023) amended regulation 13 to update references to Aboriginal sites and heritage legislation. Regulation 6 (environmentally sensitive areas) expired on 8 April 2005; the definition in regulation 3 ceased effect under regulation 9 when the first Ministerial notice under s 51B is published, though no such notice has yet been published.

The regulations themselves do not refer to any litigation. Because they are subordinate legislation, any challenges to the validity of prescribed clearing exemptions or fee provisions would likely be brought under the Judicial Review Act or the Environmental Protection Act. The source text provides no information about cases interpreting these regulations. The regulations have been in operation since 2004, but no cases are mentioned in the legislative document. It is possible that the State Administrative Tribunal or the Supreme Court has considered the meaning of terms such as "riparian vegetation", "limited clearing", or "property" in the context of enforcement actions under the Act, but the regulations do not cite any such decisions. The absence of any express reference to case law in the regulations suggests that the drafters intended the text to be self-contained and that any interpretive disputes have been resolved without amending the regulations. The amendment history shows many textual clarifications, which may have been prompted by operational experience rather than litigation. For example, the 2006 amendments to Schedule 2 clarified the "previously cleared" concept by adding time limits and lawfulness requirements, which may have responded to ambiguity in practice. Similarly, the 2021 insertion of Part 3 on confidentiality likely responded to stakeholder concerns about disclosure of sensitive information, but again no litigation is noted. A thorough search of WA case law would be required to identify any reported decisions, but such analysis would exceed what is provided in the source.

Several provisions contain traps for the unwary. The first is the 5-hectare aggregate limit for limited clearing (items 1, 5, 6, 7, 10, 12, 13 and 19). This cap applies per financial year per property, and "property" means an area managed as a single property - so a landowner cannot avoid the cap by clearing on separate titles. The cap includes all limited clearing, not just the same item; clearing 2 ha for a building under item 1 and 4 ha for firewood under item 5 in the same year would exceed 5 ha and make all clearing unlawful. Second, many items prohibit clearing of riparian vegetation (items 1, 12, and Schedule 1 clause 3), but item 12 permits it if there is no reasonable alternative route and the track is necessary for commercial activities - a subjective test that can be challenged. Third, the "previously cleared" concept in Schedule 2 for transport corridor maintenance only applies if the previous clearing occurred within 10 years and was lawful, or the person clearing does not know and cannot reasonably be expected to know it was unlawful. This places a due diligence obligation on road and rail authorities to check the history of clearing. Fourth, items 5, 6 and 7 (firewood, fencing materials, woodwork) prohibit killing any live vegetation and preventing regrowth - so only dead wood or sustainable lopping is permitted, not removal of live trees. Fifth, item 19 (isolated trees) defines the tree's area as the drip line, but the tree must be more than 50 m from any other native vegetation in an otherwise cleared area - so clumps of trees cannot be cleared as isolated trees. Sixth, the definition of "building" includes a transportable building that is connected to a sewerage or septic tank or intended to be used as a permanent building - so a caravan without connection might not qualify, but a transportable home does. Seventh, the fee structure in regulation 7 distinguishes between column A (any part of the application area within the intensive land-use zone) and column B (all other areas), and for area permits the fee jumps from $400 to $600 at 1 ha, then steeply up to $10,000 for over 1000 ha in zone A - applicants must check the zone boundaries defined by Shepherd et al. 2001. Eighth, the CEO may reduce, waive or refund fees in whole or part (regulation 7(4)), but there is no right to a reduction. Ninth, Schedule 1 clause 2(2) allows clearing up to 10 ha in an authority area for any purpose without a permit, but this does not apply in non-permitted areas (clause 4) which include entire bioregions such as Avon Wheatbelt, Jarrah Forest, and Swan Coastal Plain - so mining companies in those regions cannot rely on that item. Tenth, the Part 3 confidentiality regime only applies if the person makes a written request when submitting documentation; the CEO is not obliged to consider confidentiality proactively except for bank account numbers (mandatory) and the discretionary categories in regulation 13 (personal information, species locations, Aboriginal sites). Failure to request confidentiality at the time of submission may result in publication.

The first step is to determine whether the proposed clearing requires a clearing permit under the Environmental Protection Act or is "prescribed clearing" under these regulations. The person should check regulation 5(1) Table and the three schedules to see if the clearing fits one of the 26 items. For clearing that is not prescribed, a permit application must be made to the CEO under section 51E of the Act, accompanied by the fee prescribed in regulation 7. The fee depends on whether the permit sought is an area permit (fees range from $400 to $10,000 depending on area and location in the intensive land-use zone) or a purpose permit (base $2,000 plus variable fee from $400 to $10,000). The applicant should ensure the application area is accurately calculated and that the correct column (A or B) is used. For prescribed clearing, the person must satisfy all conditions in the relevant item. This generally means: (a) the clearing is done by or with the prior authority of the person listed in the item (usually the landowner or occupier); (b) the clearing is carried out so as to limit damage to neighbouring native vegetation (regulation 5(1)(c)); and (c) any specific limits on area (e.g. 5 ha per financial year for limited clearing), location (e.g. not riparian vegetation, not in road reserves for item 12), timing (e.g. fire hazard reduction outside restricted burning times), and purpose (e.g. for domestic heating, non-commercial woodwork, cultural purposes) are met. For items that refer to "limited clearing", the person must keep running tally of all limited clearing on the property in the financial year to ensure the aggregate does not exceed 5 ha. For items 5, 6, and 7 (firewood, fencing materials, woodwork), the person must ensure that no live vegetation is killed and regrowth is not prevented, and that the material cannot be obtained from vegetation already cleared for another purpose. For items 10 and 12 (fence line and tracks), the clearing width must be no wider than necessary. For item 12, there must be at least 100 m between the new track and any other cleared land usable for the same purpose. For item 19 (isolated trees), the tree must be more than 50 m from any other native vegetation. For mining and petroleum activities (items 20, 24, 25), the person must ensure the activity falls within Schedule 1's definition of low-impact (e.g. no ground disturbance, raised-blade tracks, scrape and detect under 2 ha) and is not in a non-permitted area listed in Schedule 1 clause 4. For activities that are not low-impact but are within 10 ha per financial year under clause 2(2) of Schedule 1, the person must ensure the authority area does not include any part of a non-permitted area. For infrastructure maintenance (Schedule 3), the activity must have been completed within the time limits (now expired for items 23, but modern equivalents would require a permit unless covered by a newer exemption). For transport corridor maintenance (Schedule 2), the person must ensure the clearing is within the specified areas (crossover, lateral clearance, infrastructure maintenance, public roadside facility, sight line) and to the extent previously cleared (within 10 years and lawful). The debris must be either used on site or removed within 90 days (Schedule 2 clause 3) or 21 days (Schedule 3 clause 2) and not placed in a heap on uncleared vegetation. Persons submitting documentation (e.g. clearing referrals or permit applications) should consider requesting confidentiality in writing at the time of submission if the documentation contains trade secrets or commercially valuable confidential information. They should also ensure they provide up-to-date contact details and respond to any written notices from the CEO under sections 51E(1A), 51KA(2) or 51MA(3), as failure to do so may affect permit processing. Finally, any person who becomes aware of a transfer of interest in the land must notify the CEO under section 51N(1), and the regulations require the CEO to record that notification (regulation 8(6)).