Posted on May 20, 2026 by Katie Mortimer and Tim Lawson 1

Guidance from the LEC on Assessing Likely Impacts on Biodiversity Values – the relationship between the BC Act & the EPA Act

Part 7 of the Biodiversity Conservation Act 2016 (BC Act) which governs biodiversity assessment and approvals, prevails over the Environmental Planning and Assessment Act 1979 (EPA Act) or any instrument made under the EPA Act, to the extent of any inconsistency: section 7.5.

The Land and Environment Court recently considered that provision and how inconsistency between the BC Act and EPA Act should be determined. The Court’s findings provide useful guidance on how a consent authority may further consider under the EPA Act (outside of the assessment in a biodiversity development assessment report (BDAR)) the likely impact of a proposed development on biodiversity values pursuant to section 7.13(2) of the BC Act.

Initial Decision 

In the initial decision, Senior Commissioner Dixon determined an appeal against the refusal of a development application seeking development consent to construct a seniors living development.

The Council contended that two provisions of the Warringah Local Environmental Plan 2000 (LEP) precluded the grant of development consent:

• clause 56, which provided development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land, 
• clause 58, which provided development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation – and on remnant native ground cover species 

The applicant in the proceedings argued that the analysis of biodiversity impacts was the exclusive domain of Part 7 of the BC Act. The LEP clauses must be ignored as they were inconsistent provisions that imposed a standard, method or outcome in biodiversity assessment that departed from the biodiversity offsets scheme. It was only if the DA did not trigger Part 7 of the BC Act that the LEP provisions would apply, unaffected by the BC Act.

The Senior Commissioner accepted the Applicant’s argument, finding there was inconsistency between the LEP provisions and Part 7 of the BC Act. Dixon SC found that by the LEP clauses requiring improvements in biodiversity, they contradicted Part 7 of the BC Act and erected a higher bar to an approval than the standard adopted in the Biodiversity Assessment Method, by which biodiversity impacts of any development must be assessed.

The Senior Commissioner acknowledged that section 7.13(2) of the BC Act allows a consent authority to further consider under the EPA Act the likely impact of the proposed development on biodiversity values, but found that discretion should only be exercised if there were good reason to do so, and could not set aside the assessment in the BDAR.

Decision on Appeal 

The Council appealed against the initial decision, with Chief Justice Preston upholding the appeal.

Two categories of the Council’s appeal grounds were:

• the proper approach to determining inconsistency under section 7.5(1) of the BC Act, between Part 7 of the BC Act and the EPA Act and LEP,
• the proper interpretation of section 7.13 of the BC Act.

The Proper Interpretation of Section 7.13(2) of the BC Act 

Preston CJ set out that s7.13(2) provides for both a relevant consideration and a permissible consideration to be taken into account in determining a DA. Section 7.13(2) provides:

The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application [being a DA that is required to be accompanied by a BDAR], is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.

His Honour stated that the relevant consideration is in the first sentence, requiring a consent authority to consider the likely impact of the proposed development on biodiversity values ‘as assessed in the biodiversity assessment report that relates to the application.’

The permissible consideration is in the second sentence, specifying a matter that may be considered, but is not required to be. This consideration of the likely impact of the proposed development on biodiversity values, permits consideration of that matter otherwise than as assessed in the BDAR.

For the reasons explained below, Preston CJ held that section 7.13(2) contains additional considerations and not substituted considerations.

Determining Inconsistency under Section 7.5(1) of the BC Act

Preston CJ held that the first step in determining inconsistency for the purposes of section 7.5(1) of the BC Act involves identifying the provisions of Part 7 of the BC Act and any provisions of the EPA Act or any instrument under that Act, which are potentially inconsistent with one another.

Whilst Dixon SC referred to section 7.13 of the BC Act, the Senior Commissioner did not identify which subsection of s7.13 founded an inconsistency, but there were references to s7.13(2). Preston CJ found that the Senior Commissioner did not identify the provisions of the EPA Act or LEP which potentially might be inconsistent with section 7.13(2)

The second step was to construe the provisions identified as being potentially inconsistent in accordance with the ordinary rules of construction, to determine if in fact there was actual contrariety between the provisions.

One principle of statutory construction is the principle of harmonious operation, which creates a ‘very strong presumption’ that the legislature did not intend to contradict itself in provisions in different statues, but intended that both provisions should operate.

Preston CJ considered that the principle of harmonious operation had special application to section 7.13(2) of the BC Act and section 4.15(1) of the EPA Act. These provisions regulate the consent authority’s consideration of matters in determining a DA under the EPA Act. Section 7.13(2) of the BC Act, by providing a ‘relevant consideration’ and ‘permissible consideration’, adds matters to be considered by a consent authority under section 4.15(1) of the EPA Act. As a result, Dixon SC erred in construing the relevant provisions of Part 7 of the BC Act and the relevant provisions of the EPA Act and LEP as being inconsistent with each other.

You can read the decision in full here: Northern Beaches Council v Vigor Master Pty Ltd [2025] NSWLEC 136

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