Biodiversity conservation reforms expand from 24 November 2018

Commercial Directions

From 24 November 2018, all developers in NSW will feel the impact of the sweeping changes to the NSW planning scheme introduced as a result of the biodiversity conservation reforms.

Key points

  • The NSW Biodiversity Conservation Act 2016 (the Act) and the Biodiversity Conservation Regulation 2017 (the Regulation) – together with the NSW Biodiversity Conservation (Savings and Transitional) Regulation 2017 and the Local Land Services Amendment Act 2016 – have significantly altered how biodiversity is assessed, managed and offset
  • The Biodiversity Offsets Scheme will expand to include the following local government areas from 24 November 2018:
    • Lower Hunter (Cessnock, Newcastle, Port Stephens, Lake Macquarie and Maitland)
    • Central Coast
    • Coffs Harbour, and
    • Wollongong (West Dapto)
  • Consent authorities may impose conditions of consent requiring developers to offset their biodiversity impact
  • Biodiversity impacts can be offset by generating credits through a Biodiversity Development Report and retiring those credits, purchasing biodiversity credits in the market and retiring them, or by paying money into the Biodiversity Conservation Fund
  • Development consent cannot be granted for non-State significant development if the consent authority determines that the development is likely to have serious and irreversible impacts on biodiversity values.

The Biodiversity Offset Scheme

One of the key aspects of the Act is the establishment of the Biodiversity Offsets Scheme. The Scheme provides a system for offsetting the impacts associated with development or clearing through the purchase and retirement of ‘biodiversity credits’ from people who have entered into a biodiversity stewardship agreement.

The two key components of the Scheme are:

  • developers and landholders who undertake development or clearing which generates a credit obligation that must be retired to offset their activity, and
  • landholders who establish a biodiversity stewardship site on their land that generates credits to sell to developers or landholders who require those credits, to securely offset activities at other sites.

This article concentrates on the impact that the Scheme will have on developers and landowners who are undertaking development or clearing.

How does the Scheme work?

Step 1 – Determine if the Scheme applies

Developers will need to closely assess the area in which they plan to develop as the biodiversity value of the land will play a decisive role in the success of their project.

Developments covered by the Scheme include:

  • Local developments requiring consent under Part 4 of the Environmental Planning & Assessment Act 1979 (EPA Act), excluding complying development
  • State significant developments and infrastructure
  • Biodiversity certification proposals
  • Clearing of native vegetation of urban areas and areas zoned for environmental conservation (that exceeds the Biodiversity Offset Scheme threshold)
  • Activities under Part 5 of the EPA Act.

Step 2 – Apply the Biodiversity Assessment Method (BAM)

If the Scheme applies to a development, the developer must engage an Accredited Assessor to apply the BAM. This assesses biodiversity values and calculates any biodiversity losses due to development of the land. The Accredited Assessor prepares a Biodiversity Development Report, which must be submitted with a development application to the consent authority.

Step 3 – Obtain the approval of the consent authority

The consent authority will consider the Biodiversity Development Report when determining whether a development will have a ‘serious or irreversible impact’ in accordance with principles under the Regulation.

The determination of ‘serious or irreversible impact’ on biodiversity values varies, but generally means an impact that is likely to contribute significantly to the risk of a threatened species of ecological community becoming extinct.

A development which is likely to have a ‘serious’ impact will be refused.

Developers should discuss any potential serious and irreversible impacts with the consent authority prior to making their formal application.

Step 4 – Determine the offset obligation

If a development is approved, the consent authority must outline the offset obligation as a condition of consent. Council may set an offset obligation above or below the requirement reflected in the Biodiversity Development Report.

Step 5 – Satisfy the offset obligation

Depending on the consent authority’s requirements, the measures to offset the development impact include:

  • Buy and retire credits from a private entity by purchasing the required ‘like-for-like’ credits, and then retiring those credits via the Biodiversity Offsets and Agreement Management System (BOAMS) that is operated by the Office of Environment and Heritage. Credits can be located by using the Office of Environment and Heritage registers or by retaining a broker to locate credits for them.
  • Make a payment into the Biodiversity Conservation Fund by using the offset payments calculator to determine the cost of its credit obligation and then transfer this amount to the Biodiversity Conservation Fund via BOAMS.
  • Fund a biodiversity conservation action in accordance with the offset rules that would benefit the relevant threatened species or ecological community and is equivalent to the cost of acquiring the required like-for-like credits.

When the developer has completed these steps for all credits they are required to retire, they can proceed with their development project in accordance with their approval.

Further information / assistance regarding the issues raised in this article is available from the authors, Fiona Nelson, Partner or Tina Kealy, Associate or your usual contact at Moray & Agnew.


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