If your land, or part of it, is declared to be an ESA, there can be significant consequences, including limiting activities that involve clearing vegetation, such as the construction of a building or other structure.  An ESA can have a substantial impact on the value of your land and, if you commit unauthorised clearing of native vegetation, you may be prosecuted for an offence under the Environmental Protection Act 1986.

An ESA is an area that is declared to be one pursuant to the Environmental Protection (Environmentally Sensitive Areas) Notice 2005 (ESA Notice) gazetted on 8 April 2005.  It includes wetlands, threatened ecological communities and buffer zones for both wetlands and rare flora.  There is particular concern with respect to the broad scope of wetlands that may be declared to be ESAs because the assessment of some designated wetlands may have been conducted solely by way of aerial photographs and desktop studies.  The Honourable Mark Lewis noted in parliamentary discussions on 9 September 2015, concerning the ESA Notice, that he has information on sandhills that are declared as wetlands.  Accordingly, there may be areas of land that are identified as ESAs, which, in fact, ought not to be.

At the time the government passed the ESA Notice, there was no formal notification to affected landowners of the law and its impact.  Following a petition to repeal the ESA Notice, in August 2015, the Standing Committee on Environment and Public Affairs found, in its report in relation to the petition, that “if the Government introduces a law that impacts on property owners and may potentially devalue property, the Government should formally notify each landowner of the law and the impact of the law”.  It recommended that “the Minister for Environment directs the Department of Environment Regulation to write to each affected landowner to advise of the existence of the ESA and its impact”.  In October 2015, the Government’s response to the recommendation included the statement that “it is not considered necessary or practicable to write to each affected landholder”.  Accordingly, there could be a real prospect that your land may be affected by an ESA and you have no knowledge of its existence.

Fletcher Law has lawyers with experience in dealing with ESA land dispute issues.  If you are concerned about the effect of an ESA on your land and want to know your rights or need advice, please contact us.

The Standing Committee’s Report and the Government’s Response are available on Hansard, see WA Parliament’s website: http://www.parliament.wa.gov.au.