Posted on July 26, 2017 by Sue Puckeridge and Katie Mortimer
Be Ready: New Land Management and Biodiversity Conservation Laws Commencing
The Biodiversity Conservation Act 2016 (‘BC Act‘) and the Local Land Services Amendment Act 2016 (‘LLSA Act’) will commence on 25 August 2017. The commencement of these two Acts will result in a new system for land management and conservation in NSW.
This is the first of two blogs to be published outlining key changes to the current planning system. This blog focuses on the BC Act and its impact on development assessment.
The new legislation follows the consultation package discussed in our previous blog. The BC Act and LLSA Act were passed on 17 November 2016. Since then, a range of draft regulations, codes and tools to support the reforms have been on public exhibition. It is anticipated that they will be finalised prior to the commencement of the new legislation. Readers should watch this space for details as these are finalised.
The BC Act is intended to establish a framework to avoid, minimise and offset impacts on biodiversity. When commenced the two Acts will repeal the Native Vegetation Act 2003, the Threatened Species Conservation Act 1995 (‘TSC Act’), the Nature Conservation Trust Act 2001 and parts of the National Parks and Wildlife Act 1974. The BC Act also deletes provisions of the Environmental Planning and Assessment Act 1979 (‘EPA Act‘) which deal with threatened species.
Key reforms include:
- the establishment of a new biodiversity offset scheme including the establishment of a Biodiversity Conservation Fund through which a proponent may satisfy biodiversity credit requirements,
- the creation of a uniform mechanism to assess the impacts of development and activities on threatened species and threatened ecological communities and habitats,
- the deregulation of the clearing of native vegetation across the State based upon state wide maps,
- the concept of ‘serious and irreversible’ biodiversity impacts.
A new biodiversity offsets scheme and Biodiversity Conservation Trust
The BC Act introduces a new biodiversity offsets scheme (‘BOS‘) and biodiversity assessment method (‘BAM‘) that will replace the range of existing systems.
The BAM (currently being finalised) will be made by the Minister administering the BC Act and will assess the impact of actions on threatened species and threatened ecological communities and their habitats, and other actions prescribed by the regulations.
The BOS and BAM will allow for:
- landowners to enter into biodiversity stewardship agreements that will earn biodiversity credits,
- proponents of development to obtain offsets for the clearing of regulated land, through the purchase of biodiversity credits or through the making a contribution to the new Biodiversity Conservation Fund (‘Fund‘) that will retire biodiversity credits, determined in accordance with an offsets payment calculator, rather than being required to locate and acquire their own biobank site.
Contributions to the Fund will be used by the new Biodiversity Conservation Trust (‘Trust‘) to secure biodiversity offsets. The Trust will replace the Nature Conservation Trust, and will be empowered to:
- manage and control the Fund,
- negotiate, enter into and administer private land conservation agreements,
- provide assistance to planning authorities when they are applying biodiversity certification of land.
Biodiversity Development Assessment Reports
A development application (‘DA‘) under Part 4 of the EP&A Act (other than State significant development (‘SSD‘) or complying development) must be accompanied by a biodiversity development assessment report (‘BDAR‘) if it meets or is above the BOS threshold, or if the proposed development is likely to significantly affect threatened species (not a species impact statement (‘SIS‘) as under the current system). Regulations that are currently being finalised will prescribe the BOS threshold.
A consent authority must consider the BDAR when determining whether to grant development consent for the proposed development.
Public authorities carrying out an activity under Part 5 of the EP&A Act have the option to be subject to the new offset scheme and include a BDAR instead of a SIS. Unlike the TSC Act, the BC Act does not prescribe the contents of an SIS. Rather the Chief Executive of OEH is to determine what must be included in any SIS on a case by case basis.
Section 7.3 of the BC Act specifies the criteria to determine when a proposed development or activity is likely to significantly affect threatened species. This test largely reflects the current 7 part test in section 5A of the EP&A Act.
A BDAR is a report prepared by an accredited person for a proposed DA that:
- assesses the biodiversity values (as defined in s1.5 of the BC Act) of the land the subject of the proposed DA, in accordance with the BAM,
- assesses the impact of the proposed DA, proposed activity or proposed clearing on the biodiversity values of that land,
- sets out the measures the proponent proposes to take to avoid or minimise the impact,
- specifies the number and class of biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values of actions to which the BOS applies.
Concurrence and Consultation
The current requirement for consent authorities to obtain the concurrence of, or consult with, the Chief Executive of OEH under section 79B of the EP&A Act is reflected in the BC Act but unlike the current position, concurrence or consultation is not required where a DA is accompanied by a BDAR.
Determination of Development Consent
Where the BOS applies to applications under Part 4 of the EP&A Act (other than SSD or State significant infrastructure (‘SSI‘)), a consent authority must take into consideration the impact of the proposed development on biodiversity values as assessed in the BDAR. If consent is granted, the consent authority must impose a requirement to retire biodiversity credits by conditions of consent.
Such a condition must be complied with before any development is carried out that would impact on biodiversity values. The number of biodiversity credits to be retired as assessed by the BAM may be reduced or increased, having regard to the environmental, social and economic impacts of the proposed development. If a consent authority decides to vary the number of biodiversity credits to be retired it must give reasons for its decision.
If the consent authority fails to include conditions requiring the retirement of biodiversity credits, the Chief Executive of OEH has the power to impose or vary such a condition.
‘Serious and irreversible’ biodiversity impacts
The BC Act introduces a new concept of ‘serious and irreversible’ biodiversity impacts.
What will constitute a ‘serious and irreversible impact’ on biodiversity values is to be determined in accordance with principles prescribed by the regulations. The Chief Executive of OEH may provide criteria to assist in the application of those principles, and lists of potential serious and irreversible impacts, from time to time.
The concept of serious and irreversible biodiversity impacts is not prescriptive, and provides discretion to a consent authority when it is considering if the circumstances of a particular proposal will cause a serious and irreversible impact.
A draft guideline is currently being finalised. It presently indicates that to be a serious and irreversible biodiversity impact, a proposed impact will impact a species or ecological community that:
- is currently in a rapid rate of decline
- has a very small population size
- has a very limited geographic distribution
- is unlikely to respond to management and is therefore irreplaceable.
A consent authority must:
- refuse to grant consent under Part 4 of the EP&A Act (other than SSD or SSI) if it considers the proposed development is likely to have serious and irreversible biodiversity impacts on biodiversity values,
- consider if the proposed development is likely to have serious and irreversible biodiversity impacts on biodiversity when assessing SSD or SSI and determine any additional and appropriate measures that would minimise the impacts, if a consent or approval was to be granted.
Areas of outstanding biodiversity value
Part 3 of the BC Act contains a new power for the Minister to declare areas of outstanding biodiversity value. This power allows for areas which may not currently qualify as areas of critical habitat to be protected.
Impact of the new legislation on current applications for approval
The BC Act provides that the Regulations will deal with savings and transitional provisions. The NSW Government’s website indicates that if biodiversity assessment for a development has substantially commenced a proponent can continue with the existing assessment requirements.
This blog was prepared with the assistance of Katie Mortimer. Should you wish to discuss the changes, please contact Sue Puckeridge, Partner on 8235 9702 or by email at firstname.lastname@example.org