Posted on December 20, 2017 by Katie Mortimer and Sue Puckeridge

Recent updates on the new Biodiversity and Land Clearing Laws

New laws for the assessment of biodiversity and clearing of vegetation in NSW commenced on 25 August 2017.

Since the laws commenced, the Government has amended the regulations and proceedings have been commenced in the Land and Environment Court challenging the Land Management (Native Vegetation) Code 2017 (‘Code‘) made under the Local Land Services Act 2013 (‘LLS Act‘). The Government has also announced a delay in the preparation of layers of the Native Vegetation Regulatory Map.

A brief update on these matters is set out below.

Challenge to the Code

The Code provides for categories of clearing which can be undertaken with or without approval under the LLS Act.  Under the Code, landholders are required to self assess whether clearing requires approval or not.

The lawfulness of the Code is being challenged by the Nature Conservation Council (‘NCC‘).  NCC allege the procedure required under section 60T of the LLS Act for the Code’s creation was not followed, as:

• the Minister for Primary Industries did not obtain the concurrence of the Minister for the Environment before making the Code (as required by s60T(2)), and
• both Ministers failed to have regard to the principles of ecologically sustainable development (as required by s60T(3)).

This is the first challenge to the new land clearing laws.

Delay in the preparation of the Native Vegetation Regulatory Map

When the LLS Act commenced on 25 August 2017, it was expected that the draft layers for category 1 – exempt land and category 2 – regulated land of the NVR Map would be issued in about September 2017.

The Government has announced a delay in the release of these draft layers but no new date has been set.

Until these layers are published and finalised they will have no regulatory effect and landholders must self assess what category of land their land falls within having regard to the criteria identified in the LLS Act. The category 2 – vulnerable land and category 2 – sensitive land layers commenced on 25 August 2017 and have full regulatory effect.

Extension of  Transition Period for Part 4 development applications

The Biodiversity Conservation (Savings and Transitional) Amendment Regulation 2017 (‘Amending Regulation‘) released on 24 November 2017, extends the application of the former planning provisions of the EPA Act to the biodiversity assessment of Part 4 development applications to 25 February 2018. 

Part 4 development applications lodged before this date will not be assessed under the Biodiversity Conservation Act 2016 (‘BC Act‘).

Any species impact statement required to accompany a part 4 development application must still be submitted by 25 August 2018.

The Amending Regulation also extends the period by which the Minister for the Environment can declare a local government area to be an ‘interim designated area’. Previously the Minister had to make such a declaration by 25 November 2017.  She now has until 25 February 2018.

Presently only Camden, City of Campbelltown, City of Fairfield, City of Hawkesbury, City of Liverpool, City of Penrith and Wollondilly are interim designated areas.

The former planning provisions apply to the assessment of development applications (excluding state significant development) lodged by 25 August 2018 for development  located on land within an interim designated area.  Any species impact statement that is to form part of the application must be submitted by 25 February 2019.

Amendment to include concept plan approvals or other planning arrangements 

On 15 December 2017 the Biodiversity Conservation (Savings and Transitional) Amendment (Previous Biodiversity Offsets) Regulation 2017 (‘PBO Regulation‘) commenced.

The PBO Regulation applies to development the subject of:

• an approved concept plan under the previous Part 3A of the EPA Act, or
• an arrangement associated with the making of an environmental planning instrument or development control plan, the grant of concurrence under the EPA Act or the making of any other application or request under the EPA Act (defined as ‘relevant planning arrangement’).

The Secretary of the Department of Planning and Environment can certify for proposed development the subject of an approved concept plan, and the Chief Executive of the Office of Environment and Heritage can certify for proposed development the subject of relevant planning arrangements that:

• the biodiversity impacts of the proposed development (that forms part of the concept plan approval or relevant planning arrangement) were satisfactorily assessed before the BC Act commenced, and
• conservation measures have been secured into the future to offset the residual impact of the proposed development.

Upon such certification, Part 7 of the BC Act will not apply to the development application and the former planning provisions apply instead.

Read our previous blogs on the new processes for biodiversity assessment & clearing of native vegetation.