Environmental Protection (Environmentally Sensitive Areas) Notice 2005

The Notice uses a small set of interlocking legal concepts. These concepts govern how the Notice maps on-ground features to the label “environmentally sensitive area” and hence to the application of Part V Division 2 of the Environmental Protection Act 1986. The primary concepts in the text are:

• Defined wetland (clause 3). This is a composite concept built from a list of documentary sources and statutory lists. A “defined wetland” includes wetlands on the Ramsar List, those in the Commonwealth Directory of Important Wetlands (2001, 3rd ed.), geomorphic wetlands mapped as conservation category wetlands in the Department’s maps, and specific mapped wetland inventories published by the Water and Rivers Commission in 1997 (Pen) and by Semeniuk Research Group in 1997. The Notice therefore ties the definition to named lists and maps rather than to an open description such as “areas dominated by hydrophytic vegetation”.
• Spatial buffers and continuity (clauses 4(1)(c)-(d); 4(2)). For many categories, the environmentally sensitive area extends beyond the physical feature itself. The Notice prescribes a 50 metre buffer around “defined wetland” entries and the area covered by vegetation within 50 metres of rare flora, subject to a continuity rule: two vegetation areas are “continuous” if separation between them is less than 5 metres at one or more points (clause 4(2)). These numeric thresholds create bright-line spatial tests.
• Reliance on determinations and lists (clauses 3; 4(1)(a)-(b), (e), (g)-(j); 4(6)-(7)). The Notice imports determinations, declarations, registrations, mappings and listings made under Commonwealth instruments (for example, World Heritage properties per s 13 of the Commonwealth EPBC Act, clause 4(1)(a)), state instruments (for example, the list of threatened ecological communities maintained by the CALM agency, clause 3 definition of “threatened ecological community”), and named state Environmental Protection Policies.
• Triggering condition for legal effect (clause 4(5)). A site that would otherwise be environmentally sensitive under the Notice does not become so unless the determination is publicly made, or, in the specific case of areas tied to rare flora or threatened ecological communities, the owner, occupier or person responsible for care and maintenance has been notified.
• Specific procedural carve-outs (clauses 4(3) and 4(4)). The Notice defines when part of a Bush Forever site ceases to be an environmentally sensitive area because of WAPC approval (clause 4(3)), and it excludes maintenance areas within road or railway reserves from being environmentally sensitive areas (clause 3 definition of maintenance area and clause 4(4)). Clause 4(3) also imports the procedural status of Part IV assessments of the Environmental Protection Act 1986 by referring to whether a WAPC decision is under assessment under Part IV.

Two ancillary definitional concepts are expressly provided: “maintenance area” (clause 3) and “rare flora” (clause 3, by reference to the declaration under s 23F of the Wildlife Conservation Act 1950). “Threatened ecological community” is defined to require both ministerial determination and inclusion on a list maintained by the chief executive officer of the department principally assisting in the administration of the Conservation and Land Management Act 1984 (clause 3).

Operationally, the Notice is not a free-standing regulatory regime. Its main conceptual job is to port geographically and taxonomically expressed conservation determinations into the particular statutory vehicle of Part V Division 2 of the Environmental Protection Act 1986, with defined buffers and procedural triggers that determine whether and when the Part applies to particular parcels of land.

This Notice affects identifiable classes of actors through the mechanism of declaring certain land and water features environmentally sensitive for the purposes of Part V Division 2 of the Environmental Protection Act 1986. The principal affected parties and how they are implicated under the Notice are:

• Private landowners and occupiers whose land contains or adjoins declared features. The Notice makes clear that an area that would otherwise be an environmentally sensitive area is not such an area unless the determination has been made public (clause 4(5)(a)), or, for areas tied to rare flora or threatened ecological communities, the owner, occupier or person responsible for care has been notified (clause 4(5)(b)). That notification requirement directly involves owners and occupiers as recipients of administrative decisions that change the regulatory status of their land.
• Prospective developers and persons proposing works. By declaring categories of land as environmentally sensitive for the purposes of Part V Division 2 (clause 4(1)), the Notice imports the regulatory constraints and approval processes of that part of the Act onto parcels that fall within the declared categories. The identities of affected proponents are thus those who propose clearing, development or other activities in or within the prescribed buffers of declared wetlands, vegetation around rare flora, threatened ecological communities, Bush Forever sites (subject to the Bush Forever carve-out), areas covered by listed Environmental Protection Policies, World Heritage properties, and certain nationally or locally listed natural heritage places (clause 4(1)(a)-(j)).
• Public agencies responsible for conservation listings and mapping. The Department (the WA agency referenced in clause 3) is effectively the custodian of geomorphic wetland maps and is named in the defined wetland definition (clause 3(c)). The chief executive officer of the department principally assisting in administering the Conservation and Land Management Act 1984 maintains the list of threatened ecological communities used by the Notice (clause 3 definition). The Western Australia Planning Commission is engaged as the decision-maker determining whether parts of Bush Forever sites are approved for development (clause 4(3)). These agencies’ determinations, lists and mapping products are the factual inputs that determine whether land is caught.
• Road and railway maintenance authorities. Maintenance areas within road and railway reserves are explicitly excluded from being environmentally sensitive areas to the extent they fall within a reserve’s maintenance area (clause 4(4) and the definition of “maintenance area” in clause 3). This affects authorities that lawfully clear within maintenance corridors, as those cleared maintenance areas remain outside the scope of Part V Division 2 by the Notice’s terms.
• Owners and controllers of Bush Forever sites, and the Western Australia Planning Commission. Bush Forever sites are included as environmentally sensitive areas (clause 4(1)(f)), except where the WAPC has made an approvable decision and that decision is not under assessment under Part IV of the Environmental Protection Act 1986 (clause 4(3)). Therefore landholders, developers and the WAPC itself are affected, particularly where WAPC decisions and Part IV environmental assessments intersect.
• Persons responsible for listed policy areas. The Notice brings into the ESA fold areas covered by named Environmental Protection Policies (clause 4(1)(g)-(j)). Entities whose land use is regulated by or interacts with those policies will become affected because their land may be captured by the ESA designation.

Because the Notice itself does not spell out the regulatory instruments of Part V Division 2, the Notice’s designation changes the pool of persons subject to the application of that Part. Practically, those who undertake land use activities that would be regulated under Part V Division 2 in other circumstances are the ones materially affected once the Notice designates their land as environmentally sensitive.

The Notice is not a standalone source of duties or rights in the sense of prescribing offences, authorisations or penalties. Its legal function is to designate categories of land that will then fall within Part V Division 2 of the Environmental Protection Act 1986. Consequently, the key duties and rights that flow from the Notice arise mainly through the interaction with that Part of the Act rather than from the Notice text itself. The Notice does, however, create specific procedural and spatial obligations that stakeholders must recognise:

• Duty to monitor determinations and public notices. Clause 4(5) makes the legal effect contingent on publicity: a site is not an environmentally sensitive area under this Notice until the “determination” has been made public (clause 4(5)(a)). For areas tied to rare flora or threatened ecological communities, the owner, occupier or person responsible must be notified (clause 4(5)(b)). The implied duty for regulators is to publish or notify; the implied duty for landholders is to monitor or look for official notification that may change the status of their land.
• Spatial measurement obligations. The Notice prescribes explicit spatial extents for some categories: a 50 metre buffer around “defined wetland” features (clause 4(1)(c)), and an area covered by vegetation within 50 metres of rare flora “to the extent to which the vegetation is continuous” with the vegetation in which the rare flora is located (clause 4(1)(d)). Continuity is defined as separation less than 5 metres at one or more points (clause 4(2)). Those thresholds create duties for proponents and assessors to measure and map distances, to determine vegetation continuity and to establish whether a feature falls within the 50 metre buffer.
• Right to be excluded if determinations are unpublished or notification absent. Clause 4(5) is rights-protective in the narrow sense that land will not be caught by the ESA label unless the decision is public or the relevant persons have been notified. That creates an administrative right for landowners and occupiers: without publication or direct notice, the ESA designation does not embed itself legally.
• Exclusions for maintenance areas. Clause 4(4) excludes from the definition any area that would otherwise be an ESA to the extent it is within the maintenance area of a stretch of road or railway. The Notice defines “maintenance area” as any area in the reserve for that stretch of road or railway that is lawfully cleared (clause 3). This exclusion preserves the ability of road and rail authorities to undertake lawful maintenance clearing without those areas being classed as ESAs under the Notice.
• Conditional exclusion for Bush Forever development. Clause 4(3) stipulates that an area of a Bush Forever site is approved to be developed by the WAPC for the purposes of clause 4(1)(f) if the Commission has made a decision that, if implemented, would permit development, that decision is not under Part IV assessment under the Environmental Protection Act 1986, and, where a Part IV assessment has been made, the decision may be implemented. The practical effect is that WAPC approvals can displace ESA coverage for parts of Bush Forever sites, subject to the procedural status of Part IV assessment.
• Reliance on external determinations as legal predicates. Several categories are defined by reference to external lists and policies (for example, World Heritage properties as defined by s 13 of the Commonwealth EPBC Act, clause 4(1)(a); the Register of the National Estate for natural heritage under the Australian Heritage Council Act 2003, clause 4(1)(b); specified Environmental Protection Policies, clause 4(1)(g)-(j)). The duty for agencies and parties is to identify whether an external determination applies; the right is that only those features recognized under the named instruments are captured.

The Notice also defines “determination” broadly to include declaration, designation, registration, mapping and other descriptions (clause 4(7)). That definition shapes both administrative duties (what actions by agencies will trigger ESA status) and the rights of affected persons (for example, a mapping entry disclosed publicly is sufficient to trigger the ESA label).

In short, the Notice creates duties of measurement, monitoring and administrative publication or notification, and preserves specific rights to exclusion where the procedural triggers are not satisfied or where excluded areas (maintenance areas, approved Bush Forever development) apply. The substance and sanctions of duties and rights that actually bind conduct remain those provided by Part V Division 2 of the Environmental Protection Act 1986; the Notice provides the spatial and categorical inputs to that regime.

The Notice itself does not create offences, specify penalties or establish an enforcement agency. It is a declaratory instrument that brings particular areas within the scope of Part V Division 2 of the Environmental Protection Act 1986 (clause 4(1)). Therefore:

• Any penalties, compliance obligations, enforcement powers and decision-making procedures that apply because land is an environmentally sensitive area will be those contained in Part V Division 2 of the Environmental Protection Act 1986, not in this Notice. The Notice does not reproduce or amend those statutory provisions; it only identifies where they apply.
• The Notice creates administrative preconditions (publication of determinations or notification of owners/occupiers, clause 4(5)) that must be satisfied before an area is an environmentally sensitive area under the Notice. Enforcement of those preconditions , in the sense of ensuring agencies publish or notify , will follow general administrative law and statutory accountability mechanisms, as the Notice does not itself set out an enforcement regime for failures to publish or notify.
• Where the Notice excludes areas from ESA coverage, for example, maintenance areas within road or railway reserves (clause 4(4)), the Notice preserves existing lawful maintenance activities from being caught by the ESA label. If a person undertakes clearing within a maintenance area that is lawful under other provisions, the Notice ensures that such cleared maintenance areas are not converted incidentally into ESAs.
• Clause 4(3) creates a conditional operation where parts of Bush Forever sites may cease to be ESAs if WAPC decisions are implemented and not under Part IV assessment. Enforcement of compliance with the result of WAPC decisions and the Part IV assessment process remains a matter for the Environmental Protection Act 1986 and whatever processes govern WAPC approvals.

Because the Notice does not specify penal consequences, practitioners and affected parties must consult Part V Division 2 of the Environmental Protection Act 1986 to determine the precise offences, civil penalties, criminal sanctions, compliance notice powers, and enforcement pathways that apply if activity is undertaken in an area that is, at the relevant time, an environmentally sensitive area under this Notice.

Practical implication for enforcement: the Notice changes the pool of land to which Part V Division 2 enforcement can be directed, but it does not itself set thresholds for enforcement or penalties. The Notice’s publication and notification requirements (clause 4(5)) also create potential timing disputes about when enforcement exposure legally commences in relation to particular parcels of land.

The Notice is structured to import determinations and concepts from specific Commonwealth and State instruments and named policy documents. Its interactions are therefore primarily through reliance on external statutory definitions, lists, mappings and policy instruments. The text expressly references, or ties coverage to, the following instruments and documents:

• Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act): clause 4(1)(a) declares “a declared World Heritage property as defined in section 13 of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth” as an environmentally sensitive area. Clause 3 defines “Ramsar Convention” by reference to how it is in force for Australia under the Commonwealth EPBC Act.
• Australian Heritage Council Act 2003: clause 4(1)(b) captures areas included on the Register of the National Estate because of natural heritage value under that Act.
• Commonwealth Directory and international lists: clause 3(a) imports “the List of Wetlands of International Importance kept under the Ramsar Convention” and clause 3(b) adopts wetlands listed in the Commonwealth Directory of Important Wetlands in Australia (2001 edition, 3rd ed.) as “defined wetland”.
• State wildlife and conservation laws: clause 3 defines “rare flora” by reference to flora declared rare under section 23F of the Wildlife Conservation Act 1950. Clause 3’s definition of “threatened ecological community” requires ministerial determination and reference to the list maintained by the chief executive officer of the department principally assisting in administering the Conservation and Land Management Act 1984.
• State Environmental Protection Policies (EPPs) and named documents: clause 4(1)(g)-(j) brings into scope areas covered by specific EPPs , the Gnangara Mound Crown Land Policy 1992, the Western Swamp Tortoise Policy 2002, the Swan Coastal Plain Lakes Policy 1992, the South West Agricultural Zone Wetlands Policy 1998, and the Swan and Canning Rivers Policy 1998. Clause 4(1)(f) imports Bush Forever sites as listed in the Bush Forever volumes published by the Western Australia Planning Commission (2000), with the qualification that parts of those sites approved for development by the WAPC may be excluded (clause 4(3)).
• Internal cross-reference to the Environmental Protection Act 1986: clause 4(3) ties the Bush Forever carve-out to whether a WAPC decision is under assessment under Part IV of the Environmental Protection Act 1986. That is a direct operational interaction with the Part IV assessment scheme of the Act.
• Mapping and academic inventories: clause 3(c)-(e) references geomorphic wetland maps held by the Department and two specific mapping/classification studies published by the Water and Rivers Commission in 1997 (Pen L.; V & C Semeniuk Research Group). These documents are treated as source materials for the definition of “defined wetland”.

The Notice does not harmonise or amend those other instruments; rather, it uses their lists, definitions and maps as predicates. Several practical interaction dynamics follow:

• The Notice makes the legal status of a parcel contingent on its inclusion in, or relation to, external lists, maps or determinations. This gives those external instruments de facto regulatory significance within the Part V Division 2 regime.
• Clause 4(6) states that, unless a contrary intention appears, references to determinations of flora, ecological communities, sites or areas are references to the determination “as in force or effect immediately before the day on which this notice comes into operation.” This creates a temporal interaction: the Notice fixes the relevant determinations at a point in time (immediately before commencement) for the purpose of defining what is captured. It therefore limits retroactive effect and ties the initial scope to existing determinations at the date of commencement.
• Clause 4(5) creates an administrative interaction: the ESA label only has effect once the determination has been made public (or owners notified in specified cases). Therefore, agencies that maintain lists or maps must publish or notify to trigger the ESA consequences under this Notice.
• The maintenance area exclusion (clauses 3 and 4(4)) interacts with other statutes that authorise road and railway clearing and maintenance. The Notice preserves those lawful maintenance activities by excluding maintenance areas from ESA coverage.

Overall, the Notice operates as a connector: it channels certain Commonwealth listings, state policies and mapped inventories into the state Environmental Protection Act’s Part V Division 2 regime. That means regulatory consequences depend on the content, currency and publication status of the external instruments the Notice references.

The Notice’s own amendment history, as contained in the compilation table, is succinct and constrained:

• Citation: Environmental Protection (Environmentally Sensitive Areas) Notice 2005 (clause 1).
• Gazettal and commencement: published in the Western Australian Government Gazette on 8 April 2005 and coming into operation on that date (clause 2 and compilation table entry).

There are no listed subsequent amendments, additions or repeals in the text provided. The compilation table records only the original gazettal (8 April 2005, p. 1163-6) and the commencement date (8 April 2005). The Notice does not itself provide any mechanisms for periodic review, sunset, or automatic updating tied to subsequent changes in the external instruments it references. Instead, the Notice ties its scope to determinations and listings that, in some cases, it fixes as of the date immediately before commencement (clause 4(6)).

Two provisions are relevant to temporal scope and potential future change:

• Clause 4(6) and clause 4(7). Clause 4(6) provides that references to determinations of flora, ecological community, site or area are references to those determinations “as in force or effect immediately before the day on which this notice comes into operation,” unless a contrary intention appears or the context otherwise requires. Clause 4(7) defines “determination” broadly. These provisions suggest that the initial sweep of the Notice is anchored to determinations in force immediately before commencement, which may constrain the coverage to pre-existing listings or mappings unless subsequent administrative action publishes new determinations.
• Clause 4(5). The requirement that determinations be publicly made for an area to be an ESA (or that specific notification be given to owners/occupiers for some categories) introduces a mechanism by which later determinations may acquire legal effect under the Notice, provided they are published or notifications are made. The Notice does not prescribe a formal amendment route; instead, it relies on the administrative procedures of the agencies maintaining determinations and public registers.

Because the Notice references external instruments that themselves may be amended, replaced or updated by other statutory or administrative processes, the practical coverage of the Notice can change over time through the publication of new determinations, updated maps, or agency list changes. However, the Notice’s text provides no stand-alone update procedure; change is therefore effected via the underlying determinations and the administrative act of publishing or notifying, not via amendments to this Notice recorded in the compilation table.

If subsequent statutory instruments, policies, or lists are to be included or excluded, either this Notice would need to be amended or the relevant determinations would need to be made and publicly communicated in accordance with clause 4(5). The provided compilation table shows only the original gazettal and commencement in April 2005; no later amendments or variations appear in the source material supplied.

The supplied text of the Environmental Protection (Environmentally Sensitive Areas) Notice 2005 contains no references to court cases, tribunal decisions or litigation history. It does not cite judicial decisions nor does it record challenges, declaratory judgments or appeals under the Notice itself.

Because the Notice functions to bring specified areas within Part V Division 2 of the Environmental Protection Act 1986, any litigation that engages the Notice is likely to have arisen in the context of disputes about:

• Whether a particular parcel is an environmentally sensitive area under the Notice (for example, factual disputes about whether a wetland is a “defined wetland” as mapped or listed under the cited sources, whether vegetation is “continuous” under clause 4(2), or whether a determination has been made public as required by clause 4(5)); or
• The consequences of the ESA designation in relation to the regulatory scheme in Part V Division 2 of the Environmental Protection Act 1986 (for example, whether particular clearing or development is permitted, or whether enforcement action under the Act is lawful), with the Notice’s designation serving as the factual predicate.

However, there is nothing in the Notice text that records any such litigation or provides particulars of judicial interpretation. The Notice’s definitions and publication/notification thresholds are concrete points that would be likely subjects of contest if disputes reach courts or tribunals, but the existence, outcome or reasoning of any litigation is not present in the source and therefore must not be asserted here.

Practitioners seeking litigation history relevant to this Notice must therefore consult external legal databases, court records and tribunal decisions to identify whether any challenges or judicial interpretations have been made concerning the Notice’s mapping, the application of clause 4(5)’s publicity requirement, the interpretation of vegetation continuity under clause 4(2), or the treatment of maintenance areas in clause 4(4). None of those materials are reproduced in the Notice itself.

The Notice contains several narrowly-drafted technical rules and dependencies that create practical traps for landowners, proponents and regulators if they are not actively considered. These are not normative judgments but concrete operational features drawn from the text:

• Legal effect depends on publication or notification (clause 4(5)). An area that otherwise fits a declared category is not an ESA under this Notice unless the determination is made public, or, for rare flora and threatened ecological communities, the owner/occupier/person responsible has been notified. Practically, if regulators fail to publish or notify, enforcement exposure under Part V Division 2 may not have been legally triggered for a parcel. That timing issue can be decisive in disputes about when regulatory obligations began.
• Temporal anchoring of determinations (clause 4(6)). The Notice says references to determinations are to the determination “as in force or effect immediately before the day on which this notice comes into operation,” unless the contrary intention appears. Practically, the initial capture of sites is locked to determinations in force just before commencement, which may exclude later-listed items unless they are separately published and brought into effect by the administrative processes envisaged in clause 4(5). Users must avoid assuming the Notice automatically sweeps in later amendments to external lists.
• Buffer and continuity rules are narrow and technical (clauses 4(1)(c)-(d); 4(2)). The 50 metre buffers and the 5 metre continuity test are bright-line measures. Small differences on the ground (a 4.5 metre gap in vegetation versus a 5.5 metre gap) make the difference between inclusion and exclusion under the continuity rule. Survey, mapping and measurement precision matter; small measurement errors can change regulatory exposure.
• Reliance on named documents and maps that are external and possibly specialist (clause 3). A “defined wetland” includes wetlands mapped in specific technical publications and geomorphic maps held by the Department. Those documents will be essential to determine coverage, but they may be highly technical, out of print or not readily accessible. The Notice makes those documents determinative in law, so lack of access or misunderstanding of their scope is a practical hazard.
• Bush Forever carve-out depends on WAPC decisions and Part IV assessment status (clause 4(3)). The exclusion of approved developments within Bush Forever sites depends on whether the WAPC decision is under assessment under Part IV of the Environmental Protection Act 1986 and whether it can be implemented post-assessment. This creates a procedural intersection that can be confusing: an approval may exist but still be under Part IV assessment, in which case the ESA label may still attach until the assessment clears the proposal.
• Maintenance area exclusion defined by lawful clearing (clauses 3 and 4(4)). The definition of “maintenance area” is any area in the reserve for that stretch of road or railway that is lawfully cleared. That ties the exclusion to the lawfulness of the clearing. If clearing is carried out without the relevant lawful authority, the exclusion may not apply; conversely, lawful maintenance clearing preserves the exclusion. Determination of lawfulness could therefore become material in regulatory disputes.
• The Notice does not itself set out rights to compensation, variations or appeals. Because the Notice is a designation instrument, affected parties will need to look beyond it for administratively available remedies, appeals or compensation schemes. The Notice’s silence on those topics is a practical gap that requires cross-reference to other statutes and administrative regimes.
• Narrow scope of “threatened ecological community” (clause 3). That concept requires both ministerial determination and appearance on a list maintained by the relevant chief executive officer. A community that has not been through both steps will not be an ESA under this Notice. The two-step threshold can deny immediate protection to communities not yet fully processed through the listed administrative steps.

These “gotchas” translate into operational risks: timing disputes about when obligations start, mapping and survey precision issues, reliance on third-party determinations and publication, and procedural complexity where multiple statutory processes intersect (for example, WAPC decisions and Part IV assessments). Identifying these points early in project planning and in agency workflows reduces the chance of surprise exposure to Part V Division 2 consequences.

Compliance in relation to this Notice requires actions along two axes: (1) ascertainment (finding out whether land is an environmentally sensitive area under the Notice), and (2) operational compliance (ensuring proposed activities conform with Part V Division 2 of the Environmental Protection Act 1986 once ESA status is confirmed). The Notice itself provides the necessary predicates to complete the ascertainment step; the regulatory details of operational compliance reside in the Environmental Protection Act 1986. Practical steps, tied to the Notice text, are:

1. Establish whether the parcel falls into any of the named categories (clause 4(1)):

   • Check whether the land is a declared World Heritage property as defined in s 13 of the Commonwealth EPBC Act (clause 4(1)(a)).
   • Verify whether the land is included on the Register of the National Estate for natural heritage reasons under the Australian Heritage Council Act 2003 (clause 4(1)(b)).
   • Determine whether the land is a “defined wetland” by consulting the Ramsar List, the Commonwealth Directory of Important Wetlands (2001, 3rd ed.), the Department’s geomorphic wetland maps indicating conservation category wetlands, and the two 1997 Water and Rivers Commission mapping publications (clause 3(a)-(e); clause 4(1)(c)).
   • Check for the presence of rare flora declared under s 23F of the Wildlife Conservation Act 1950 and whether vegetation within 50 metres is continuous with the vegetation where the rare flora occurs (clauses 3 and 4(1)(d); apply the <5 metre continuity rule in clause 4(2)).
   • Check whether the land supports a threatened ecological community as determined by the Minister and listed by the chief executive officer of the department assisting the Conservation and Land Management Act 1984 (clause 3).
   • Confirm whether the land is a Bush Forever site listed in the Bush Forever volumes (clause 4(1)(f)) and whether any part has been approved for development by the WAPC such that clause 4(3) might apply.
   • Confirm whether the land lies within any of the areas covered by the specified Environmental Protection Policies (clause 4(1)(g)-(j)).

2. Verify the administrative triggers for legal effect (clause 4(5)):

   • Ascertain whether the relevant determination has been made public. If it has not been publicly published, the land is not an ESA under this Notice.
   • For cases of rare flora or threatened ecological communities, confirm whether the owner, occupier or person responsible for care has been notified. Without that notification, the ESA label does not attach for those categories.

3. Map and measure to the Notice’s spatial rules (clauses 4(1)(c)-(d); 4(2)):

   • Commission or carry out accurate survey and vegetation mapping to establish distances to wetland boundaries and rare flora vegetation, and to test vegetation continuity under the <5 metre rule. Use reliable cadastral and topographic data and, when necessary, obtain specialist ecological advice to interpret mapping sources cited in clause 3.

4. Consider maintenance area and WAPC carve-outs (clauses 3; 4(3)-(4)):

   • If the area in question is within a road or railway reserve, determine whether the area in question lies within the “maintenance area” (lawfully cleared areas in the reserve). If it does, the Notice excludes it from ESA coverage to that extent.
   • For Bush Forever sites, check the WAPC decision record: if the Commission has made a decision that, if implemented, permits development, and that decision is not under Part IV assessment , or where the Part IV assessment has concluded and the decision may be implemented , the part of the Bush Forever site covered by that decision is not an ESA under the Notice.

5. If an area is confirmed as an ESA, proceed to Part V Division 2 compliance:

   • The Notice does not specify approval pathways or penalties; those are in the Environmental Protection Act 1986. Obtain legal and environmental advice about the specific consent, assessment and compliance requirements under Part V Division 2 before undertaking clearing, development or other regulated works.
   • Prepare to present mapping evidence, relevant determinations and proof of public notice or notification where such matters are in dispute.

6. Track changes and updates:

   • Although clause 4(6) fixes the initial determinations to those in force immediately before commencement, clause 4(5) allows later determinations to have effect when made public. Maintain a routine check of the Department’s maps and the external lists and policies referenced in clauses 3 and 4(1) to identify new or updated determinations that may alter ESA coverage.

7. Document reliance and communication:

   • If you are a landowner, developer or local government, keep records demonstrating whether and when determinations were publicised or notifications were received. These records will be material if there is any dispute about whether the ESA label had attached at a given time.

8. For authorities and regulators:

   • Ensure that determinations, mappings and notifications required to bring areas within the Notice’s scope are recorded and made available publicly in a manner consistent with clause 4(5). Failure to publish or notify will mean the ESA designation does not legally attach under the Notice.

These steps are practical corollaries of the Notice’s text. They separate the ascertainment task that the Notice supplies (identify whether a parcel meets the textual predicates and whether the procedural triggers are satisfied) from the substantive compliance regime (Part V Division 2 of the Environmental Protection Act 1986), which practitioners must consult for the detailed permitting, assessment and enforcement rules that apply once ESA status is established.