Posted on March 12, 2021 by Lindsay Taylor 46

Overview: DPI’s Guide to Biosecurity for Environmental Planners

In recent years, biosecurity has been a salient topic among policymakers and practitioners. The global COVID-19 pandemic, as well as the accelerated biodiversity loss attributed to the arrival and spread of new species, have only served to highlight the importance of good biosecurity practice.

Local-level decision-making is key to this practice. Biosecurity risks can be significantly mitigated—or made significantly worse—by the everyday and strategic decisions taken by environmental planners.

In this post, we take you through the Managing Biosecurity in Land Use Planning and Development Guide (Biosecurity Guide), published by the NSW Department of Primary Industries in October 2020. The Biosecurity Guide is useful for local government decision-makers wishing to understand their biosecurity obligations in law and what they can do to help prevent, eliminate, and mitigate biosecurity risks in their local government area.

What is biosecurity?

According to the NSW Biosecurity Strategy 2013-2021 (Biosecurity Strategy), biosecurity means ‘protecting the economy, environment and community from the negative impacts of pests, diseases and weeds‘ (p 3).

Pursuant to the Intergovernmental Agreement on Biosecurity, NSW biosecurity policy is founded on the principle of ‘shared responsibility‘. This is defined in the Biosecurity Strategy as ‘[g]overnment, industry and the people of NSW working together to protect the economy, environment and community from the negative impacts of animal and plant pests, diseases and weeds for the benefit of all people in NSW‘.

The principle of shared responsibility, as well as the rest of the State’s core biosecurity policy, is given legal effect in the Biosecurity Act 2015 (Biosecurity Act) and Biosecurity Regulation 2017 (Biosecurity Regulation). The legislation creates significant obligations for councils and, indeed, every person in NSW.

The general biosecurity duty

Section 22 of the Biosecurity Act imposes the following general duty:

Any person who deals with biosecurity matter or a carrier and who knows, or ought reasonably to know, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing has a biosecurity duty to ensure that, so far as is reasonably practicable, the biosecurity risk is prevented, eliminated or minimised.

Any person, including an artificial legal person like a corporation, who ‘fails to discharge‘ this duty is guilty of an offence (s 23). A detailed discussion of the elements of the offence can be found in the Biosecurity Guide (see pp 5–6). Key concepts, such as ‘biosecurity matter‘ and ‘biosecurity risk‘, are defined in Division 2 of Part 2 of the Biosecurity Act.

Failing to discharge the general biosecurity duty is also an ‘executive liability offence‘ (s 23(4)). As we’ve explained in another blog (linked here), executive liability means that ‘persons concerned in the management of a corporation‘, including a local council, are liable for the offence committed by the corporation. Executive liability will usually include at least the General Manager and, depending on the circumstances, certain directors of divisions within the council.

Biosecurity risks & land use planning

The Biosecurity Guide identifies public strategies and development approvals (DAs) as the most significant opportunities to prevent, eliminate, or mitigate biosecurity risks. They are also the times at which, without careful planning, biosecurity risks may materialise with significant environmental and socio-economic impacts.

Public strategies will generally allow the most in-depth consideration of biosecurity policies and practices council-wide. Indeed, many councils have already done so in the process of making Local Strategic Planning Statements.

But it’s at the everyday level of DAs that biosecurity risks will arise most of the time. Examples of development which usually carry high biosecurity risk include:

• new intensive livestock agriculture developments;
• new intensive plant agriculture developments;
• new aquaculture agricultural developments;
• state significant developments; and
• other proposed developments near existing agricultural businesses, transport corridors, pipelines or other industries (see pp 6–9).

The Biosecurity Guide suggests that environmental planners are not responsible for the biosecurity risks arising from developments without consent, including, for example, extensive agriculture in certain Rural zones (p 7). Notwithstanding this, in our view, there is an opportunity here for councils to advance best practice in environmental management by offering their biosecurity knowledge and assistance to ratepayers and proponents of development not requiring consent. This may enhance trust in local government and the reputation of councils, leading to higher levels of cooperation and net benefits which may extend well beyond matters of biosecurity.

Biosecurity Guide recommendations to environmental planners and managers

The Biosecurity Guide structures its recommendations based on each stage of the environmental planning and assessment process:

1. Initial considerations and site selection (p 10). The Biosecurity Guide identifies some salient biosecurity risks to be considered by planners, including those from proximate sources (like farms, waterbodies, and transport routes) and those inherent in changing land from one use to another.
2. Project scoping and risks (pp 10–11): The Biosecurity Guide recommends councils seek expert advice early in the process. This will help councils identify risks which may enliven the general biosecurity duty and respond accordingly.
3. The DA process (pp 11–14): Aside from the general biosecurity duty, which applies notwithstanding planning controls and procedures, biosecurity risks may be relevant to include in DA assessment documentation (for example, Environmental Impact Statements and Statements of Environmental Effects). Biosecurity risks should also be considered and identified by the development proponent in the DA documentation. When the DA is approved, councils can attach specific conditions to reduce biosecurity risk, including requirements for buffer zones, wash-down facilities, designated parking areas, location of certain premises (especially poultry farms) away from waterways and wetlands, and strict practices pertaining to dumping and burying rubbish on-site.
4. Project implementation (p 15). Biosecurity risks will arise, and need to be managed, during construction and operation of the development. As the Biosecurity Guide outlines, biosecurity management plans are an efficient and legally enforceable way to do this (see Biosecurity Regulation pt 2 div 12). The Biosecurity Guide also provides advice about how to make a biosecurity management plan, and in the online version of the document provides a hyperlink to some useful templates which councils can use.

Finally, appended to the Biosecurity Guide is a valuable index of additional biosecurity information for environmental planners. This includes a list of the biosecurity-related laws, policies, and instruments (Appendix 1), a guide to industry-specific guidelines and codes of practice (Appendix 2), and a more detailed analysis of the Biosecurity Act (Appendix 3).

If you have any questions about this article, please contact Lachlan Penninkilampi or Dr Lindsay Taylor .