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Appeals Convenor

Environmental Protection Act 1986

REPORT TO THE MINISTER FOR ENVIRONMENT

APPEAL IN OBJECTION TO THE DECISION OF THE DEPARTMENT OF ENVIRONMENT REGULATION TO REFUSE TO GRANT A CLEARING PERMIT

PROPOSED CLEARING OF EIGHT HECTARES OF NATIVE VEGETATION FOR THE PURPOSE OF EXPANDING AN EXISTING

MARKET GARDEN, LOT 53 ON DEPOSITED PLAN 9474, CARABOODA (CLEARING PERMIT APPLICATION CPS 6271/1)

PROPONENT: MR MICHELE MONTE

Appeal Number C009 of 2016

September 2016

Appeal In Objection to Refusal of Clearing Permit Appeals Convenor’s Report CPS 6271/1: Proposed clearing of eight hectares, Lot 53 on Deposited Plan 9474, Carabooda, Mr M Monte September 2016

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Appeal Summary

This report addresses an appeal lodged in objection to the decision of the Department of Environment Regulation (DER) to refuse to grant a permit to clear eight hectares of native vegetation for the purpose of expanding an existing market garden at Carabooda in the City of Wanneroo. The issues raised in the appeal were characterised as relating to the following subject areas: proposed offset for impacts to significant habitat for Carnaby’s cockatoo; potential impacts to an Aquatic Root Mat Community Threatened Ecological Community (TEC); land degradation; and planning and other matters. In assessing Clearing Permit Application CPS 6271/1, DER found the proposed clearing to be at variance to clearing principle (b) and may be at variance to clearing principles (d), (g), (h) and (i) and is not or not likely to be at variance to the remaining clearing principles. DER’s assessment of the environmental values of the application area determined that the majority of the vegetation is in very good condition and contains significant habitat for Carnaby’s cockatoo. DER advised that the applicant did not provide any information on steps taken to avoid, minimise and mitigate potential environmental impacts to Carnaby’s cockatoo habitat resulting from the proposed clearing, which is a policy requirement before any offset to counterbalance residual significant impacts can be considered. The assessment also determined that the proposed clearing may increase groundwater nitrogen levels and change the water balance at the location, increasing the risk of groundwater and nutrient movement, which is likely to negatively impact a critically endangered Aquatic Root Mat Community TEC located down gradient. After seeking advice from the Department of Parks and Wildlife on the issue, and consistent with DER Guidelines, DER requested that the applicant provide a H2 hydrological assessment to address the issue but no such investigation was commissioned. In relation to land degradation, DER advised that the former Department of Agriculture undertook a land degradation assessment of the land and found that clearing of native vegetation had the potential to cause eutrophication, wind and water erosion. In examing this issue, DER’s assessment took into consideration management measures undertaken by the applicant to mitigate wind erosion at the property. In relation to planning and other matters raised in the appeal, the Department of Water and City of Wanneroo advised DER that they did not support the application due to concerns around the availability of water for the proposed land use (i.e. market garden) and environmental considerations. Having regard to the issues raised in the appeal, the purpose and extent of the proposed clearing, the advice provided by DER, and the information obtained in discussion with the applicant’s representative, it is concluded that DER was justified in its decision to refuse to grant Clearing Permit Application CPS 6271/1.

Recommendation It is recommended that the appeal be dismissed.


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INTRODUCTION

This report addresses an appeal lodged by Mr Michele Monte (applicant) in objection to the decision of the Department of Environment Regulation (DER) to refuse to grant a permit to clear eight hectares of native vegetation on Lot 53 on Deposited Plan 9474, Carabooda, City of Wanneroo (application area), for the purpose of expanding an existing market garden (application CPS 6271/1). The location of the proposed clearing is shown in Figure 1.

Figure 1: Location of proposed clearing

(Source: CPS 6271/1 and Whereis.com)

In September 2014, the applicant lodged an application to clear eight hectares of native vegetation on the land. The application was advertised in The West Australian newspaper on 22 September 2014 for a 21-day public submission period. DER did not receive any submissions. During its assessment of the application, DER sought advice from the Department of Water (DoW) and the City of Wanneroo, and undertook a site inspection of the application area in December 2014 with the applicant present.

Location of proposed clearing


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In considering a clearing matter, section 51O of the EP Act requires the Chief Executive Officer (CEO) of DER (and by extension, the Minister on appeal) to have regard to the clearing principles and to any planning instrument, or other matters that the CEO considers relevant. In this regard, DER’s assessment found that the clearing is at variance to principle (b) and may be at variance to clearing principles (d), (g), (h) and (i) and is not or not likely to be at variance to the remaining clearing principles. On 1 June 2016 DER refused to grant a clearing permit, pursuant to section 51E(5)(b) of the Environmental Protection Act 1986 (EP Act). It is against this decision that the appeal was lodged. This document is the Appeals Convenor’s formal report to the Minister for Environment under section 109(3) of the EP Act.

OVERVIEW OF APPEAL PROCESS

In accordance with section 106 of the EP Act, a report was obtained from DER in relation to the issues raised in the appeal. During the appeal investigation, representatives of the Office of the Appeals Convenor consulted the applicant’s representative in relation to issues raised in the appeal. The environmental appeals process is a merits based process. For appeals in relation to a DER decision to refuse to grant a clearing permit, the Appeals Convenor normally considers the environmental merits of the assessment by DER based on principles as set out in Schedule 5 of the EP Act, as well as other environmental factors. Questions of additional information not considered by DER, technical errors and attainment of relevant policy objectives are normally central to appeals.

OUTCOME SOUGHT BY APPELLANT

The applicant was of the view that DER was not justified in refusing to grant a clearing permit and that the Minister on appeal should grant the permit.

GROUNDS OF APPEAL

The applicant raised a number of issues that broadly relate to the following subject areas:

1. proposed offset for impacts to significant habitat for Carnaby’s cockatoo;

2. Aquatic Root Mat Community Threatened Ecological Community (TEC);

3. land degradation; and

4. planning and other matters.

GROUND 1: PROPOSED OFFSET FOR IMPACTS TO SIGNIFICANT HABITAT FOR CARNABY’S COCKATOO

In relation to DER’s assessment that the proposed clearing was at variance to clearing principle (b) (significant habitat), the applicant submitted that he had offered to provide funding for the purchase of better quality habitat for Carnaby’s cockatoo as part of an offsets package. The applicant expressed the view that offsets can be of benefit in securing high quality habitat, such as the $65,000 he contributed in December 2011 to fund the purchase of 48 hectares of Carnaby’s cockatoo habitat north of Gingin as part of an offsets package through the former Department of Environment and Conservation.


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Consideration

With respect to clearing principle (b), it is noted that the applicant did not challenge DER’s findings that the application was at variance with this principle, aside from a reference to the vegetation within the application area being of low value habitat for Carnaby’s cockatoo. The Decision Report1 indicates that during the site inspection DER officers assessed the vegetation within the application area as being in good to very good condition2, with the majority in very good condition. The Decision Report states that the application area has been mapped within a confirmed breeding area for Carnaby’s cockatoo, and that a number of hollows were observed in jarrah trees during the site inspection. It was also indicated that the application area has been mapped as an unconfirmed feeding area for Carnaby’s cockatoo and contains suitable foraging habitat for the species, however no evidence of foraging was evident during the site inspection. The Decision Report also states that the cumulative impacts from the loss of banksia woodlands on the Swan Coastal Plain, such as that found in the application area, restricts the availability of food sources for cockatoo species. Given the above, it is considered that DER’s conclusion with regard to clearing principle (b) through its assessment of the environmental values of the site in relation to Carnaby’s cockatoo habitat was justified. With respect to the application of offsets, DER advised that during the assessment of application CPS 6271/1 the subject of the appeal, there was some general discussion between DER officers and the applicant regarding the possibility of using offsets to counterbalance significant residual environmental impacts resulting from the proposed clearing on Carnaby’s cockatoo habitat. DER advised however that the applicant did not provide any information on steps taken to avoid, minimise and mitigate potential environmental impacts from the proposed clearing, which is a requirement before consideration can be given to the appropriateness of an offset. Notwithstanding this, DER also advised that environmental offsets are not appropriate in all instances. In relation to the use of environmental offsets, the WA Environmental Offsets Guidelines3 outlines that:

Environmental offsets will only be considered after avoidance and mitigation options have been pursued (principle 1, offsets policy). Environmental offsets address significant environmental impacts that remain after on-site avoidance and mitigation measures have been undertaken. Environmental offsets will only be considered after strategies to avoid and mitigate significant environmental impacts have been applied.

There are four steps in the mitigation hierarchy – Avoid, Minimise, Rehabilitate and Offset ... In developing a project, proponents/applicants must apply this hierarchy to reduce its potential impacts on the environment … It is expected that the first three steps of the mitigation hierarchy are to be applied to the greatest extent practicable before determining the residual impact and, if significant, any consideration of an offset.

It is noted that DER wrote to the applicant on 11 December 2014 outlining the environmental issues identified as part of the assessment including (among other things) potential impacts to significant habitat for Carnaby’s cockatoo. Having received no response from the applicant on this issue, DER wrote to the applicant again on 29 April 2016, stating:

1 Department of Environment Regulation 2016, Clearing Permit CPS 6271/1 (including the decision report and maps). Department of Environment Regulation, Perth. 2 As determined in accordance with Keighery, BJ 1994, Bushland Plant Survey: A Guide to Plant Community Survey for the Community, Wildflower Society of WA (Inc.), Nedlands, Western Australia. 3 The Government of Western Australia 2014, WA Environmental Offsets Guidelines, The Government of Western Australia, Perth.


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I note that the Department has not received a written response outlining how the significant environmental impacts to Carnaby's cockatoo (Calyptorhynchus latirostris) outlined in DER's letter of 11 December 2014 will be avoided or minimised. This information is required prior to determining the extent of the impacts and whether offsets are appropriate in this instance.

In that letter, DER provided the applicant 30 days written notice of the intent to refuse to grant a clearing permit, given the unresolved issues identified during the assessment. DER advised that on 27 May 2016, the applicant’s representative contacted DER and advised that no additional information was available in relation to the issues raised by DER. DER then wrote to the applicant on 1 June 2016, notifying that the application to grant a clearing permit was refused and provided the reasons for the decision. With regards to the applicant’s comments about offsets, DER advised that the applicant previously contributed an offset of $65,000 for the purchase of 48 ha of banksia woodland suitable for Carnaby’s cockatoo habitat in relation to a Vegetation Conservation Notice (VCN 2268/1) issued to the applicant in 2008 due to unlawful clearing within Lot 52 adjacent to the application area. DER also advised that the applicant undertook further unlawful clearing within the same area in 2010, which involved re-clearing regenerating native vegetation and then planting a cereal crop on the land. This resulted in the area of land subject to VCN 2268/1 being devoid of regenerating vegetation with no likelihood of regeneration. DER indicated that the offset of $65,000 was required to counterbalance significant environmental impacts resulting from the unlawful clearing.

Conclusion

It is noted that consistent with the Offsets Guidelines, the applicant was given the opportunity to respond to DER’s preliminary assessment of potential impacts to significant habitat for Carnaby’s cockatoo, and that no information was provided by the applicant on the steps taken to avoid and minimise those impacts. It is considered that DER was justified in not examining offsets further during the assessment process and it is recommended that this ground of appeal be dismissed. In response to the applicant’s contention that an offset of $65,000 was applied in the past, it is noted that the funds were required to purchase Carnaby’s cockatoo habitat to counterbalance the significant environmental impacts of unlawful clearing, and it is therefore not considered a relevant consideration in this matter.

GROUND 2: AQUATIC ROOT MAT COMMUNITY TEC

In relation to DER’s assessment that the proposed clearing may be at variance to clearing principles (d) TEC; (h) environmental values of an adjacent or nearby conservation area; and (i) water quality, the applicant submitted that a Nutrient and Irrigation Management Plan4 (NIMP) for Lot 53 was prepared by his consultant in March 2015. The applicant questioned why a NIMP prepared for Lot 52 in 2011, which is adjacent to Lot 53 but further away from the Aquatic Root Mat Community TEC, was accepted but not that prepared for Lot 53. The applicant also submitted that a consultant had prepared a H1 Hydrological Assessment for several lots on his property, including Lot 53, in December 2013. The applicant advised that fertiliser applications on the existing market garden are strictly controlled and monitored using best practice fertigation systems.

Consideration

In relation to clearing principles (d) and (h), the Decision Report states that Yanchep Cave YN555, which is part of an Aquatic Root Mat Community TEC (the ‘Yanchep Caves TEC’) listed as critically endangered, is located approximately 650 metres west of the application 4 Bayley Environmental Services 2015, ‘Lot 53 (Number 296) Old Yanchep Road, Carabooda – Nutrient and irrigation management plan’, prepared for M & G Monte & Son, 3 March 2015.


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area. It is also noted that DER’s assessment found that the proposed clearing is at variance to clearing principle (b) due to potential impacts to the Yanchep Caves TEC (in addition to impacts to Carnaby’s cockatoo habitat as discussed in Ground 1). The Decision Report indicates that the Yanchep Caves TEC is groundwater dependent and particularly sensitive to hydrological change. It was also indicated that environmental monitoring of the Yanchep caves in 2007 found a reduction in the number of taxa of aquatic invertebrate fauna in cave YN555 and evidence of nutrient pollution of cave water. DER advised that groundwater mapping, as illustrated in the applicant’s NIMP5 (see Figure 2), shows that groundwater from the application area flows west through cave YN555 and drains directly into Wilgarup Lake in the Yanchep National Park.

Figure 2: Direction of groundwater flows within the vicinity of Lot 53 Old Yanchep Road

(Source: Bayley Environmental Services 2015)

The Decision Report outlines that areas of native vegetation have higher concentrations of nitrogen than agricultural soils, and when native vegetation is cleared, nitrogen is released into the soil through the oxidation of organic matter. It was also indicated that the proposed clearing may cause a change in the water balance at the location and increase the risk of groundwater and nutrient movement, which is likely to negatively impact the Yanchep Caves TEC and particularly cave YN555. In relation to the adequacy of the applicant’s NIMP prepared for Lot 53, DER advised that the NIMP addresses the nutrient impact of proposed horticultural land uses but does not address the release of excess nitrogen into groundwater from the proposed clearing or its movement down gradient towards the Yanchep Caves TEC and cave YN555.

5 Bayley Environmental Services 2015, p. 12.


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With regards to the NIMP prepared for Lot 52 in 2011, DER advised that it was prepared by the applicant’s consultant in response to VCN 2268/1 (described in Ground 1) and was deemed acceptable to control nutrient impacts from the intended horticultural land use. DER noted however that given the land subject to VCN 2268/1 had already been cleared and was devoid of native vegetation, the issue of nitrogen release from the clearing could not be addressed through a NIMP, or otherwise regulated, as it had already occurred. In relation to the H1 Hydrological Assessment6 prepared by the applicant’s consultant in 2013, DER advised that it was developed in response to a request by DoW for the applicant to report on water usage at Lots 52, 53, 55, 502, 504 Old Yanchep Road, Carabooda. DER also advised that while the assessment satisfied DoW’s requirements, advice from the Department of Parks and Wildlife (Parks and Wildlife) indicated that it did not provide a suitable risk assessment to investigate and assess spatial variations and seasonal fluxes of groundwater and nutrients flowing down gradient to the Yanchep Caves TEC. It is noted that in DER’s letter dated 11 December 2014 to the applicant (noted in Ground 1), DER requested that a H2 hydrological assessment (a basic hydrological assessment including drilling and test pumping) be undertaken. DER advised that a H2 hydrological assessment was not commissioned by the applicant. As noted in Ground 1, on 29 April 2016 DER provided the applicant 30 days written notice of the intent to refuse to grant a clearing permit given the unresolved issues identified during the assessment, and the applicant’s representative notified DER on 27 May 2016 that no additional information was available . DER’s published Guide, A guide to the assessment of applications to clear native vegetation7, outlines that if after initial assessment of an application to clear native vegetation, DER identifies that insufficient information is available for the CEO to make an informed decision, then further studies or information may be required, and it is the responsibility of the applicant to provide it. Consistent with this Guide, it is noted that DER requested that the applicant provide a H2 hydrological assessment to support the application, and that no such investigation was commissioned by the applicant. In relation to clearing principle (i) (water quality), the Decision Report states that the proposed clearing may be at variance with this principle due to the potential for the clearing to increase groundwater nitrogen levels. The Decision Report indicates that the Carabooda area has recorded nitrate concentrations in excess of the 50 milligrams per litre (mg/l) limit for drinking water, in comparison to that recorded beneath native bushland in the Perth region of less than 1 mg/l. It was also indicated that horticulture has the potential to increase nutrient loads in groundwater, however only impacts resulting from the proposed clearing were considered during the assessment.

Conclusion

Taking the above information into account, and in particular the advice received from DER that the applicant’s NIMP did not address the potential for clearing to increase groundwater nitrogen levels, and advice from Parks and Wildlife that the applicant’s H1 Hydrological Assessment did not provide a suitable risk assessment in relation to groundwater impacts, it is considered that DER’s assessment of the matters raised under this ground of appeal was appropriate. It was open to the applicant to provide a H2 hydrological assessment to support the application prior to a final decision being made. It is therefore recommended that this ground of appeal be dismissed. 6 Groundwater Consulting Services Pty Ltd 2013, ‘H1 Hydrogeological Assessment, Superficial Aquifer, Lots 52, 53, 55, 502, 504 Old Yanchep Road, Carabooda, Western Australia’, prepared for M & G Monte & Son, December 2015. 7 Department of Environment Regulation 2014, A guide to the assessment of applications to clear native vegetation – Under Part V Division 2 of the Environmental Protection Act 1986, December 2014.


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GROUND 3: LAND DEGRADATION

In relation to DER’s assessment that the proposed clearing may be at variance to clearing principle (g) (land degradation), the applicant contended that lucerne and other plants are grown to reduce impacts from wind erosion when the land is under fallow and not growing commercial crops.

Consideration

In relation to the risk of land degradation, the Decision Report states that the proposed clearing may result in wind erosion and an increase in groundwater nitrogen levels, and therefore has the potential to cause appreciable land degradation. The Decision Report states that in 2005 the former Department of Agriculture (DoA) undertook a land degradation assessment of Lots 52 and 53 on Deposited Plan 9474 Carabooda and found that clearing of the land had the potential to cause land degradation in the form of eutrophication, wind and water erosion. The Decision Report indicates that the applicant proposed planting lucerne to mitigate the potential impacts of wind erosion and had provided a NIMP for Lot 53. In response to this ground of appeal, and as discussed in Ground 2, DER advised that the applicant’s NIMP for Lot 53 did not address the potential for the clearing to increase groundwater nitrogen levels, and that the applicant had been provided with the opportunity to submit additional information on the issue and had not.

Conclusion

While the management measures undertaken by the applicant to mitigate wind erosion are noted, given the advice of DoA and DER that the clearing has the potential to increase groundwater nitrogen levels and cause eutrophication, it is considered that DER correctly assessed the application with respect to land degradation. It is therefore recommended that this ground of appeal be dismissed.

GROUND 4: PLANNING AND OTHER MATTERS

The applicant also raised several matters as to why, in his view, the clearing permit should have been granted which have been characterised as relating to the following subject areas:

• water source for the intended horticultural land use; and

• planning context.

Water source for the intended horticultural land use

The applicant acknowledged that his Carabooda market garden is using more water than is currently allocated under a licence to take groundwater issued by DoW, and that efforts are being made to source additional water for the intended horticultural land use on Lot 53 but with limited success. To address this, the applicant advised that the production season at the Carabooda market garden has been reduced to conserve water, with production at his market garden near Lancelin being extended to fill the gap but at a significantly higher cost. The applicant also contended that the application to clear Lot 53 is not for the purpose of expanding production at the existing market garden, but rather to allow crop rotation, rest land and grow better quality produce.


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Consideration

The Decision Report states that DoW advised DER that it did not support application CPS 6271/1, and that the applicant’s current licence to take groundwater was fully utilised. The Decision Report indicates DoW advised that the Perth superficial aquifer in the Wanneroo subarea is fully allocated and it was unlikely any application to abstract additional water under the existing licence would be granted, however water could be sourced by leasing it from another licence holder if available. In its response to the appeal, DER was of the view that the availability of water for the proposed land use (i.e. market garden) was a relevant matter for DER to consider during the assessment. It is noted that in a letter dated 2 December 2015, DER requested that the applicant provide advice on where additional water to support the proposed land use would be sourced from. Having received no response from the applicant, DER again requested this information in its letter dated 29 April 2016 to the applicant, however DER advised that no response was received. It is noted that DER Guidelines8 outline that legislative requirements under other written laws may be considered in assessing the clearing of native vegetation. These include whether the proposed land use requires a groundwater licence under the Rights in Water and Irrigation Act 1914. As noted above, DoW advised that it was unlikely any application to abstract additional water would be granted and it is noted that the applicant did not respond to DER’s requests for further information on the matter.

Conclusion

Taking the above information into account, particularly DoW’s advice that it was unlikely any application for groundwater abstraction would be granted, it is considered that this was a relevant matter (in accordance with section 51O of the EP Act) in the decision to refuse to grant a clearing permit. It is therefore recommended that this ground of appeal be dismissed.

Planning context

The applicant contended that Lot 53 was purchased in February 2003 and would have been cleared and developed for vegetable production if finance had been available at the time, but then the clearing laws changed significantly in 2004. The applicant also contended that he met with the then Minister for Agriculture and a representative from the then Minister for Environment’s Office in August 2004, where the Minister for Agriculture indicated that the land to the south of Old Yanchep Road, Carabooda was designated a horticulture precinct. The applicant submitted that his market gardening operation has had to move further away from the city since it began in Balcatta in 1958. The operation moved to Carabooda in 1987 and significant financial investment has been made in the business, which employs 75 people and supplies fresh produce for the Western Australian market.

Consideration

In its advice on this issue, DER noted that section 51O of the EP Act requires the decision maker, in considering the clearing permit application, to have regard to any planning instrument or other matter considered relevant. DER advised that it did not have specific regard to the local planning scheme during the assessment, and that relevantly, the

8 Department of Environment Regulation 2014, p. 39.


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application area is zoned ‘rural resource’ under the City of Wanneroo District Planning Scheme No. 2 (Scheme No. 2) and the intended land use is consistent with the zoning. DER also advised that advice from the City of Wanneroo received during the assessment indicated that Lot 53 is approved for ‘Intensive Agriculture’ land use under Scheme No. 2; however the City did not support the application due to environmental considerations. The Decision Report states that the City’s reasons for the decision were:

• the low representation of some vegetation associations on the land;

• impacts to Carnaby’s cockatoo habitat; and

• the applicant had not sought relevant approval under the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth).

DER was of the view that consideration of Scheme No. 2 would not have changed its decision to refuse the application, as the key factors related to significant environmental impacts resulting from the proposed clearing. In relation to the financial and employment factors raised by the applicant, DER advised that these matters are not permissible considerations for the decision maker in exercising the power under section 51E of the EP Act to determine the application. Noting DER’s advice, these matters are considered to be outside the scope of the appeal investigation and will not be examined further.

Conclusion

Having regard to the planning context, it is noted that the land within the application area is appropriately zoned for the intended land use. Notwithstanding this, DER’s view that consideration of Scheme No. 2 would not have changed the decision to refuse the application is supported, given the risk of significant environmental impacts occurring as a result of the proposed clearing.

FINAL CONCLUSION AND RECOMMENDATION

From the information provided through the appeal investigation the following is noted:

• DER’s assessment of the environmental values of the application area determined that the majority of the vegetation is in very good condition and contains significant habitat for Carnaby’s cockatoo;

• the assessment determined that the proposed clearing may increase groundwater nitrogen levels and change the water balance at the location, increasing the risk of groundwater and nutrient movement, which is likely to negatively impact the down gradient Yanchep Caves TEC;

• DER consulted with the applicant during the assessment and requested that further information be presented to address the unresolved issues identified through the process, however the applicant did not adequately respond to those matters; and

• DoW and the City of Wanneroo advised DER that they did not support the application due to concerns around the availability of water for the proposed land use and environmental considerations.


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Having regard to the issues raised in the appeal, the purpose and extent of the proposed clearing, the advice provided by DER, and the information obtained in discussion with the applicant’s representative, it is concluded that DER was justified in its decision to refuse to grant Clearing Permit Application CPS 6271/1. It is therefore recommended that the appeal be dismissed. This does not preclude the applicant from applying for a clearing permit in the future, where it is recommended the applicant addresses the issues raised by DER during the assessment of the application. Emma Gaunt APPEALS CONVENOR Investigating Officer: Michael Power, Senior Environmental Officer

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