Posted on August 3, 2023 by Katie Mortimer and Bianca Crapis 9

The Importance of BDARs: Biodiversity Assessment under the BC Act

Two development applications were recently refused by the Land and Environment Court due to unacceptable impacts on biodiversity values and deficiencies in a proponent’s biodiversity development assessment report (BDAR). The poor appreciation of proponents’ obligations under the Biodiversity Conservation Act 2016 (BC Act) that we previously discussed in our post here, continues.

Significance of a BDAR

BDARs are central to the assessment of impacts on biodiversity values pursuant to Part 7 of the BC Act. If proposed development is likely to ‘significantly affect threatened species’, then the application for development consent must be accompanied by a BDAR.

The obligation for a consent authority to consider a BDAR is specified in section 7.13(2) of the BC Act, which provides that:

The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any [application 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.

746 Greendale Road Greendale Pty Ltd v Liverpool City Council [2023] NSWLEC 1372

In this case a proponent sought development consent to use land at Greendale as a landscape material supplies business, with certain consequential civil and landscaping works. The proponent provided a BDAR with it’s development application.

Two of the council’s contentions were that the BDAR:

• was inadequate and inconsistent with sections 6.15 and 7.13(2) of the BC Act, and
• did not correctly and adequately consider all potential impacts of the proposal, and did not properly calculate the biodiversity credits required to offset those impacts.

During the course of the hearing, the proponent tendered two amended BDARs to respond to these issues.

Certification of the BDAR 

A BDAR is required to be prepared by an ‘accredited person’, defined to mean: a person accredited under section 6.10 to prepare [BDARs] in accordance with the biodiversity assessment method. Section 6.15 of the BC Act deals with the currency of a BDAR, and provides that:

(1)  A biodiversity assessment report cannot be submitted in connection with a relevant application unless the accredited person certifies in the report that the report has been prepared on the basis of the requirements of (and information provided under) the biodiversity assessment method as at a specified date and that date is within 14 days of the date the report is so submitted.

During evidence, it was established that the lead author of the proponent’s BDARs accreditation had lapsed at the time the BDARs were produced. The proponent had provided a certification of the amended BDARs by an accredited person, seemingly in an attempt to overcome this.

However, that certification dealt with the currency of the BDARs only, not that an accredited person prepared the documents. As a result the Court found that the BDARs did not satisfy section 6.12 of the BC Act and could not be relied upon for the consideration required by s7.13(2) of the BC Act.

Chilcott C distinguished between:

• certifying that an accredited person has prepared a BDAR, and
• certifying that a BDAR has been prepared, possibly by a non-accredited person(s), in a manner consistent with the BAM along with certifying the currency of the BDAR.

As there was no indication that the authors of the BDAR were accredited persons, the proponent’s certification was insufficient.

Consideration of Potential Impacts in the BDAR 

The council contended that specified impacts had not been assessed in the amended BDARs. During evidence, the proponent’s expert confirmed that certain works had not been assessed and certain other works not completed.

Given this evidence, the Court was satisfied that the BDARs were deficient in their assessment of impacts on biodiversity values, and could not be relied upon for the consideration required by s7.13(2) of the BC Act. The Court was required to refuse development consent.

McCloy Project Management Pty Ltd v Lismore City Council [2023] NSWLEC 1371

In this case a proponent sought development consent to subdivide land zoned R1 to create 196 residential lots and associated works, including the creation of an ‘environmental management lot’ on lands zoned C3. The land was known to contain preferred koala food trees (KFTs).

Amongst other issues, the council contended that the proposed development was not designed to avoid and minimise impacts on biodiversity relating to KFTs or koala habitat.

Impacts on Biodiversity: KFTs and Koala Habitat

The Court received evidence from the parties’ expert ecologists and arborists. The arborists addressed whether it was feasible that 11 KFTs proposed for retention, would indeed be retained.

The proponent’s expert conceded that for specified trees to survive, changes to certain encroachments into their tree protection zones would be required via amendment. There was no evidence concerning the conceded amendments before the Court.

The Court accepted the council’s arboreal evidence and found that the retention of specified KFTs was unlikely to be achieved. Given this conclusion, Chilcott C found that the proponent’s BDAR had underestimated the assessed impacts on biodiversity values, specifically KFTs, and could not be satisfied that the impacts had been fully or satisfactorily assessed in the BDAR.

Serious and Irreversible Impacts (SAII)

In McCloy Project Management, the Council also contended that the proposed development would have a serious and irreversible impact on biodiversity values (SAII).

Interestingly, the Court did not accept that there was any SAII.

To resolve the issue, Chilcott C asked whether the proposal was likely to contribute significantly to the risk of either the koala or a threatened plant species, Arthraxon hispidus, becoming extinct as a consequence of the proposal’s impacts on biodiversity values. The Commissioner found that:

1. the Applicant’s proposed removal of some 20 KFTs on the Subject Site, while undoubtedly likely to impact on the local population of koalas, is unlikely to lead to the extinction of this species, which, while an endangered species, remains present across a much broader area of NSW than the Subject Site, including in areas of Lismore to the west of the Subject Site; and
2. while the Proposed Development will have a significant impact on the local occurrence (that is the occurrence on the Subject Site) of the HJG, the HJG will remain widespread in its distribution in NSW, such that the Proposed Development is unlikely to contribute significantly to the risk of the HJG becoming extinct.

These findings are difficult to reconcile with Preston CJ’s decision in Planners North v Ballina Shire Council [2021] NSWLEC 120. In Planners North His Honour found that because a proposal reduced the geographic extent of endangered ecological communities (EEC) on a development site, that development would cause SAII. His Honour did not consider whether the proposal would cause a global decline of an EEC.

Conclusions 

As demonstrated in these decisions, a BDAR is central to the assessment of impacts on biodiversity values. Both proponents and consent authorities should remain mindful of:

• procedural requirements relating to BDARs, verifying that the report has indeed been prepared by an accredited person with accompanying certification,
• the need for all impacts on biodiversity values to have been assessed in the report, which will require input from all technical experts involved in a project, to avoid amendments coming forward late in a process that have not been accounted for in the report.

You can read the decisions discussed in this post here:

• McCloy Project Management Pty Ltd v Lismore City Council [2023] NSWLEC 1371
• 746 Greendale Road Greendale Pty Ltd v Liverpool City Council [2023] NSWLEC 1372

If you wish to discuss this post, please contact Katie Mortimer on 8235 9716 or Bianca Crapis on 8235 9728.