This paper focuses on the relationship between threatened species listing and command regulation designed to protect habitat on privately owned land. After outlining the historical development of threatened species regulation in NSW from its early origins in legislation designed to control hunting, it explores the role of approval processes and prosecution in the implementation of command regulation in the threatened species context. It examines the extent to which compensation is payable where land use restrictions are imposed, comparing the approach taken in other Australian states, and exploring the case for compensation in the context of the current debate about property rights, landholder duty of care and stewardship payments. Finally, the paper considers the potential of the NSW environmental planning system to protect threatened species habitat in targeted areas and, in particular, explores the relationship between environmental planning instruments and recovery plans. A case is made for a strategic approach to the use of command regulation, in which government takes the initiative rather than reacting on a piecemeal basis to individual project proposals. The Minister for the Environment, advised by what has recently become the NSW Department of Environment and Conservation², should play a key role in the strategic planning process.

Ayres, I. and Braithwaite, J. 1992 Responsive Regulation: Transcending the Deregulation Debate. Oxford University Press, New York.

Bartel, R. 2003. Compliance and complicity: an assessment of the success of land clearance legislation in New South Wales. Environmental and Planning Law Journal 20: 116 - 141.

Braithwaite, J. 2002 Restorative Justice and Responsive Regulation. Oxford University Press, New York.

Douglas, S. 1999. Local Government and the Threatened Species Conservation Act - The Greatest Potential; The Weakest Link. Australasian Journal of Natural Resources Law and Policy 6: 135-148.

Environment Protection Authority (NSW). 1997 New South Wales State of the Environment 1997. EPA, Sydney, NSW.

Environment Protection Authority (NSW). 2003 New South Wales State of the Environment 2003. EPA, Sydney, NSW.

Farrier, D. 1995a. Policy instruments for conserving biodiversity on private land. Pp. 337-359 in Conserving Biodiversity: Threats and Solutions, edited by R. A. Bradstock, T. D. Auld, D. A. Keith, R. T. Kingsford, D. Lunney and D. P. Sivertsen. Surrey Beatty and Sons, Chipping Norton, NSW.

Farrier, D. 1995b. Conserving biodiversity on private land: incentives for management or compensation for lost expectations. Harvard Environmental Law Review 19:303-408.

Farrier, D., Lyster, R., Pearson L. and Lipman Z. 1999 The Environmental Law Handbook: Planning and Land Use in New South Wales. 3^rd ed., Redfern Legal Centre Publishing, Sydney, NSW.

Farrier, D. 2002. Fragmented law in fragmented landscapes: the slow evolution of integrated natural resource management legislation in NSW. Environmental and Planning Law Journal 19: 89-108.

Farrier, D., Whelan, R. and Brown, C. 2002. Addressing scientific uncertainty in local government decision-making processes. Environmental and Planning Law Journal 19: 429-444.

Grabosky, P. and Braithwaite, J. 1986 Of Manners Gentle: Enforcement Strategies of Australian Business Regulatory Agencies. Oxford University Press, Melbourne, Victoria.

Hawkins, K. 1984 Environment and Enforcement. Clarendon Press, Oxford, UK.

Jarman, P. J. and Brock, M. A. 2004. The evolving intent, coverage and use of legislation to protect biodiversity in New South Wales. Pp 1-19 in Threatened Species Legislation - Is It Just An Act?, edited by P. Hutchings, D. Lunney and C. Dickman. Royal Zoological Society of NSW, Mosman, NSW.

Kelly, A. and Farrier, D. 1996. Local government and biodiversity conservation in New South Wales Environmental and Planning Law Journal 13: 374 -389.

Kelly, A. and Prest, J. 2000. Implementation of threatened species law by local government in New South Wales. Environmental and Planning Law Journal 17: 584-601.

Keogh, M. 2002 Property rights and farming in Australia: Defining a Duty of Care for Farm Land. NSW Farmers, Sydney, NSW, June 2002.

McDonald, L., Bradshaw, S. D. and Gardner, A. 2003. Legal protection of fauna habitat in Western Australia. Environmental and Planning Law Journal 20: 95-115.

Moorrees, A. 2003. Manager Threatened Species and Communities, Department of Sustainability and Environment (Vic). Pers. comm. 25 February 2003.

National Parks and Wildlife Service (NSW). 1999 NSW Biodiversity Strategy. NPWS, Hurstville, NSW.

Rawling, J. 2004. Case studies and lessons learnt: translocations conducted as amelioration for development. Australian Network for Plant Conservation Translocation Workshop, 4 June 2004, Mt Annan Botanic Garden, Sydney, NSW.

Saxon, M. 1997. “The Threatened Species Conservation Act 1995 - Is the Development Approval Process Working?” Pp 85-95, in On the Brink: Your Bush, Their Habitat, Our Act: Is the Threatened Species Act Working? edited by H. Webb. Nature Conservation Council, Sydney, NSW.

Sperling, K. 1999. If caution really mattered. Environmental and Planning Law Journal 16: 425-440.

Stubbs, B. J. 2001. From ‘useless brutes’ to national treasures: A century of evolving attitudes towards native fauna in New South Wales, 1860s to 1960s. Environment and History 7: 23-56.

Walker, R. B. 1991. Fauna and flora protection in New South Wales, 1866-1948. Journal of Australian Studies 28: 17-28.

Whelan R., Brown C. and Farrier D. 2004. The Precautionary Principle: What is it and how Might it be Applied in Threatened Species Conservation? Pp 49-58 in Threatened Species Legislation - Is It Just An Act?, edited by P. Hutchings, D. Lunney and C. Dickman. Royal Zoological Society of NSW, Mosman, NSW.

This content is PDF only. Please click on the PDF icon to access.

Contents

Data & Figures

References

Other RZS NSW Publications

Threatened species legislation: Is it just an Act?

Edited by

Royal Zoological Society of New South Wales

DOI:

https://doi.org/10.7882/0958608598

ISBN electronic:

0-9586085-9-8

Publication date:

2004