Posted on May 14, 2014 by Frances Tse
Is there still a role for biodiversity offsets in development assessment?
Biodiversity offsets are often proposed to address environmental impacts of development. However, a recent court decision indicates that when assessing proposed development, offsets are not to be preferred over avoidance and mitigation strategies. It is therefore worthwhile considering the role biodiversity offsets can still play.
In Bulga Milbrodale Progress Association v Minister for Planning and Infrastructure and Warkworth Mining Limited  NSWLEC 48, the Land and Environment Court held that the offset strategies proposed for a coal mine extension would not adequately compensate for its significant impact on some 66ha of an endangered ecological community. For this and other reasons, the extension of the Warkworth mine was not approved. The Court of Appeal in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc  NSWCA 105 did not disturb this conclusion.
In finding that the offsets proposed were inappropriate, Preston CJ applied the ‘Principles for the use of biodiversity offsets in NSW’ prepared by the Office of Environment and Heritage. The first principle states that offsets are the least preferred approach to biodiversity impacts behind avoidance and mitigation.
At first glance, it may seem that biodiversity offsets have little role to play. However, this is not the case. Biodiversity offsets can still have a significant and sometimes primary role to play where avoidance and mitigation strategies would not enable land to be developed in accordance with its zoning.
There is a general presumption that ‘in some form, development which is consistent with the zoning will be permitted‘ and ‘in most cases it can be expected that the court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts’ (see BGP Properties Pty Limited v Lake Macquarie City Council  NSWLEC 399).
Indeed, the Land and Environment Court has in the past accepted that where prevention and mitigation strategies have been utilised as far as is possible on a development site, a proposal consistent with the zoning can be approved provided there are appropriate offsets (see Black v Ku-Ring-Gai Council  NSWLEC 1501).
In summary, if prevention and mitigation strategies have been considered and applied as far as possible in the particular circumstances, then offsets may well be appropriate. In fact, where it is not possible to prevent and mitigate, offsets may well be the primary tool to address the biodiversity impacts of development.