Biodiversity Conservation Act in NSW
WHO SHOULD READ THIS
- Local Councils, landholders, land managers, resources companies, State Government agencies, land developers, Aboriginal land councils and farmers.
THINGS YOU NEED TO KNOW
- The new Biodiversity Conservation Act 2016 (NSW) (BC Act) and amendments to the Local Land Services Amendment Act 2016 (NSW) (LLS Act) reform land management and biodiversity conservation in NSW.
- The new BC Act repeals the Threatened Species Conservation Act 1995 (NSW), the Nature Conservation Trust Act 2001 (NSW) and parts of the National Parks and Wildlife Act 1974 (NSW). The LLS Act repeals the Native Vegetation Act 2003 (NSW).
- The BC Act establishes a new regulatory framework for assessing and offsetting biodiversity impacts on proposed developments. Where development consent is granted, the authority may impose as a condition of consent an obligation to retire a number and type of biodiversity credits determined under the new Biodiversity Assessment Method (BAM).
- For the first time, development consent cannot be granted for non-State significant development under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) if the consent authority is of the opinion it is likely to have serious and irreversible impacts on biodiversity values.
- A developer will be able to make a payment to the Biodiversity Conservation Fund to satisfy an offset obligation, rather than finding the offsets themselves.
- The amended LLS Act provides a three-tier structure for native vegetation clearing approval. The first tier (Category 1) requires no consent from authorities for clearing.
WHAT YOU NEED TO DO
- Local Councils, landholders, land managers, mining companies, land developers and farmers should be familiar with the new BC Act and LLS Act amendments.
- The exact method of calculation of offsets will not be known until the regulations and the final BAM are made available.
- The regulations in relation to the BC Act are essential to understanding the impact of the changes.
On 22 November 2016, the NSW Parliament passed the Biodiversity Conservation Act 2016 (NSW) (BC Act). The BC Act follows an extensive consultation process undertaken by the NSW Government which resulted in 43 recommendations and meetings with a number of stakeholders, including conservation groups, land holders, farmers, developers and local government. The reforms aim to dispense with the out-dated approaches to biodiversity conservation and land management that are no longer serving the interests of the community. The reforms attempt to slow down and reverse the long-term decline of biodiversity in NSW. A central element of the new scheme is the introduction of a single biodiversity assessment method (known as the BAM) that will replace the myriad of previous methods used.
The statutory provisions under the Threatened Species Conservation Act 1995 (NSW), Nature Conservation Trust Act 2001 (NSW) and parts of the National Parks and Wildlife Act 1974 (NSW) have been repealed under the new BC Act. Further, the Local Land Services Act 2013 (NSW) (LLS Act) amendment replaces the repealed Native Vegetation Act 2003 (NSW) in relation to land management in NSW.
The BC Act represents a radical shift in conventional biodiversity conservation in NSW. The new BC Act uses a metric-based tool to assess biodiversity impacts at a development site. An offsets payment calculator will determine how much an applicant must pay to offset the biodiversity impacts of a development.
The BC Act is yet to formally come into force and the regulations accompanying the BC Act have not yet been released. We expect that the draft regulations will be released for consultation in early 2017.
This focus article identifies some of the major changes to the management of biodiversity under the BC Act, particularly in relation to biodiversity offsets.
THE NEW BIODIVERSITY OFFSETS SCHEME
The new biodiversity offsets scheme will introduce a consistent approach to biodiversity assessment and offsets and provide certainty to landowners, developers and the community. It will replace the existing biodiversity assessment pathways.
Biodiversity Assessment Method
The BAM is the metric based tool that will be used to calculate the potential biodiversity impact or benefit of a development site or stewardship site respectively. This BAM will replace the range of existing biodiversity assessment methods including the Biodiversity Certification Assessment Methodology and Framework for Biodiversity Assessment. Ultimately, the BAM will deliver a single approach that will be applicable to all potential biodiversity impacts.
The BAM will apply to:
- clearing of land under the LLS Act
- State Significant Development (SSD) and State Significant Infrastructure (SSI) under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) that will impact on biodiversity values, and
- development under the EP&A Act where the impact on biodiversity values will be above the BAM threshold.
The exact method for calculating the biodiversity impacts using BAM will be subject to the regulations. However, the new method of assessment will create a consistent biodiversity assessment process and therefore provide some certainty as to the costs associated with development applications that require clearing of native vegetation.
The assessment of a proposed development under the BAM is to be presented in a Biodiversity Development Assessment Report (BDAR). The BDAR will need to be submitted to the relevant consent authority as part of a development application.
The consent authority will then impose conditions of consent requiring a proponent to offset their biodiversity impacts. Developers and mining companies may choose to offset their impacts by:
- generating biodiversity credits through a Biodiversity Stewardship Agreement (BSA) and retiring those credits
- purchasing biodiversity credits in the market and retiring them, or
- paying money into the Biodiversity Conservation Fund (BCF).
The consent authority may, at its discretion, set a lower offset obligation than what was calculated by the BAM.
Serious and Irreversible Impacts on Biodiversity
For the first time in NSW, development consent cannot be granted for non-State significant development under Part 4 of the EPA Act if the consent authority is of the opinion it is likely to have serious and irreversible impacts on biodiversity values. Serious and irreversible impacts include developments which increase the risk of species extinction or are considered particularly severe. This term will be defined within the regulations.
Biodiversity Stewardship Agreements
Biodiversity credits form part of the new offsetting scheme for developments that will have an impact on biodiversity. Biodiversity credits are created when a BSA is made. A BSA is an agreement between the Minister and a landowner to protect and manage an area of their land in exchange for credits. Management action plans under a BSA are taken to be exempt development for the purposes of the EP&A Act.
In order to create a BSA, an application is to be made to the Minister by the landowner. Upon entering into a BSA the land becomes a Biodiversity Stewardship Site (BSS). The land eligible to be designated by the Minister as a BSS is subject to the regulations.
The holder of biodiversity credits may in certain circumstances transfer credits to any person through trading in the credit market. Alternatively, the holder of biodiversity credits may retire credits to offset their own development.
Mining companies should be aware that land subject to a mining lease cannot be the subject of a BSA without the consent of the authority holder. Nothing prevents a mining company from carrying out any activity in accordance with the Mining Act 1992 (NSW) on a BSS.
A planning agreement under section 93F of the EP&A Act may make provision with respect to the offset of impact on biodiversity values of a proposed development, including the retirement of credits.
Biodiversity Conservation Trust and Fund
The Biodiversity Conservation Trust (BCT) will be responsible for securing offsets. The BCT replaces the Nature Conservation Trust.
The BCT will deliver the new private land conservation program by:
- working with landholders to establish conservation agreements on their properties
- determining offsets when landowner decides to pay into the BCF
- using the funds provided by government to provide stewardship payments and in-kind support for management actions, and
- administering private land conservation agreements.
The funds accumulated in the BCT will be used to facilitate and compensate landholders engaging with the Minister in management actions on BSSs.
Management actions will be required to be carried out on sites by the owners and will be funded from the Biodiversity Stewardship Payment Fund.
PRIVATE LAND CONSERVATION AGREEMENTS
There are currently seven different types of private land conservation mechanisms. Under the BC Act, there are the following three tiers of voluntary private land agreements:
- Tier 1 – BSAs. As discussed above, BSAs will protect and improve biodiversity through restoration and management actions that are secured and funded in the long term. These improvements are represented as “credits”, which can be sold to offset biodiversity impacts from development. Selling the credits generates profit for the landholder as well as funding for ongoing management;
- Tier 2 – Conservation Agreements. These agreements will typically be used for higher conservation value land where modest management effort is required to protect existing values. Conservation Agreements could be permanent or finite, and would be supported by smaller stewardship payments to landholders;
- Tier 3 – Wildlife Refuge Agreements. These agreements are entry level agreements that support simple and effective land management. Wildlife Refuge Agreements would be able to be terminated at any time, or converted into conservation agreements or biodiversity stewardship agreements.
NATIVE VEGETATION CLEARING APPROVAL
Under the amendments to the LLS Act, the Native Vegetation Act 2003 (NVA) will be repealed.
The amendments to the LLS Act have resulted in a change to the criteria for native vegetation clearing. A Native Vegetation Regulatory Map (Regulatory Map) will identify three different land categories for clearing on rural land:
- Category 1 – ‘Exempt land’ which will not be subject to clearing approval;
- Category 2 – ‘Regulated Land’ on which clearing of native vegetation may be carried out with or without approval in accordance with an ‘allowable activity’ or ‘code’ under the LLS Act, and
- ‘Excluded Land’ – Land not categorised in the Regulatory Maps and to which the LLS Act does not apply.
The Regulatory Map will not apply to land urban land, national parks or state forestry land.
Land clearing on urban land will require development consent under Part 4 of the EPA Act and a new State Environmental Planning Policy (SEPP) and Development Control Plan (DCP) will apply. The new SEPP and DCP also replace the current Tree Preservation Orders.
The current proposals allow landholders to request a review of land and provide additional local information to ensure land has been correctly categorised. This is appropriate given that incorrect mapping will impact on the value of the title held by the landholder.
Essentially, land categorised as ‘Exempt Land’ will allow farmers, mining companies and developers to quickly dispose of native vegetation once checks have been completed. This will likely result in reduced red-tape costs for proposed developments and greater assurance where land is located in low biodiversity areas.
Category 2 land will be regulated by a new Native Vegetation Regulatory Framework under the LLS Act. Under the Native Vegetation Regulatory Framework, there will be three different levels of regulation:
- defined ‘allowable activities’ which do not require approval
- four types of ‘codes based activities’ (including, management codes, efficiency codes, equity codes and farm planning codes) which are required to be certified by the Local Land Services, and
- ‘Local Land Services Biodiversity Assessment’ which will be regulated under the EP&A Act and BC Act, and as such, subject to the BAM.
The Environmental Outcomes Assessment Methodology is to be replaced with the self-assessable Codes, exemptions and discretionary clearing.
The amendments to the LLS Act will mean that there will no longer be any:
- ban on broad scale clearing
- mandatory soil, water and salinity assessment, or
- ‘maintain or improve’ standard.
For clearing of native title not otherwise authorised or regulated under the LLS Act, this will need approval from the Minister for Primary Industries.
KEY REFORMS TO BIODIVERSITY CONSERVATION IN NSW
The key reforms to biodiversity conservation in NSW as a result of the new BC Act and amendments to the LS Act are as follows:
- the BC Act will repeal the Threatened Species Conservation Act 1995 (NSW), the Nature Conservation Trust Act 2001 (NSW) and parts of the National Parks and Wildlife Act 1974 (NSW) and introduce a new biodiversity offsets scheme
- the new BAM will assess biodiversity impacts and consent authorities will in turn impose conditions of consent requiring developers and mining companies to offset requirements
- development consent cannot be granted for non-State significant development if the consent authority is of the opinion it is likely to have serious and irreversible impacts on biodiversity values
- developers and mining companies may discharge offset requirements imposed by conditions of consent by making payments into the BCF. The BCF will be used to source biodiversity offsets
- under the BC Act, there will be three tiers of voluntary private land agreements, which will include BSAs, conservation agreements and Wildlife Refuge agreements, and
- the LLS Act will repeal the Native Vegetation Act 2003 (NSW) and there will no longer be a ban on broad scale clearing, mandatory soil, water and salinity assessment or ‘maintain or improve’ standards.
WHAT IS NEXT?
Further consultation on more detailed components of the package will take place between now and the commencement of the proposed legislation including:
- draft regulations will be released for consultation, most likely in early 2017
- making the native vegetation mapping available and providing landholders with an opportunity to seek a formal review of the map for their property if they believe it has been mapped incorrectly
- exhibiting a draft SEPP and DCP, and
- exhibiting draft instruments such as the Biodiversity Assessment Method and Land Management Codes from early 2017.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.