Does the Biodiversity Conservation Act override planning laws?
A recent decision of the Chief Judge of the NSW Land and Environment Court provides clarity for practitioners, consent authorities, and developers on the interaction between the Biodiversity Conservation Act 2016 (NSW) (BC Act) and the planning assessment regime under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).
Background
In Northern Beaches Council v Vigor Master Pty Ltd [2025] NSWLEC 136, Preston CJ set aside a decision of the Senior Commissioner in the Land and Environment Court which held that the provisions of the BC Act, by the operation of section 7.5(1), oust the operation of section 4.15 of the EP&A Act and any provisions of a local environmental plan insofar as they relate to biodiversity impacts.
Part 7 of the BC Act requires consent authorities to consider the likely impact of a proposed development on ‘biodiversity values’ when assessing development applications that must be accompanied by a biodiversity development assessment report (BDAR).
Section 7.5(1) of the BC Act says as follows:
(1) This Part prevails to the extent of any inconsistency between this Part and the Environmental Planning and Assessment Act 1979 (or any instrument under that Act).
(2) A reference in the Environmental Planning and Assessment Act 1979 or any other Act or in any statutory instrument or document to the Environmental Planning and Assessment Act 1979 (whether an express or implied reference) is a reference to that Act as applying in accordance with this Part.
The Senior Commissioner had held that the assessment of biodiversity impacts under Warringah Local Environmental Plan 2011 (WLEP) was inconsistent with provisions in the BC Act as in the Senior Commissioner’s view WLEP purported to “impose a standard method or outcome in biodiversity outcome” where the BC Act already does this; or required “improvements in biodiversity” in contradiction of the biodiversity offsets scheme.
The Senior Commissioner’s view was that not only did Part 7 of the BC Act prevail over inconsistent provisions of a local environmental plan such that the WLEP would not apply, but that section 7.5(1) of the BC Act ousts the operation of section 4.15 of the EP&A Act entirely.
The decision
Preston CJ found that this was an error. While the provisions of the EP&A Act and WLEP do specify matters to be considered by the consent authority in determining the development application neither the obligation to consider nor the matters for consideration themselves are inconsistent with Part 7 of the BC Act.
Preston CJ found that the errors of misconstruction of the relevant statutory provisions and the failure to consider the relevant matters the Commissioner was bound to consider, being the relevant provisions of WLEP were material. As a consequence, His Honour set aside the decision remitting it back to the Senior Commissioner for re-determination.
Key takeaway
The decision of the Chief Judge in this case gives some clarity to key stakeholders that, in the process of assessing development requiring a BDAR, the consent authority is required to carry out biodiversity assessment in accordance with Part 7 of the BC Act, and to assess the development in accordance with all of the relevant matters in section 4.15(1) of the EP&A Act; including any provisions of a local environmental plan that are not inconsistent with the BC Act provisions.
Whether or not a provision of a local environmental plan is inconsistent with the BC Act will depend on the specific drafting of the provision.
This decision underscores the importance of understanding how biodiversity laws interact with planning frameworks. If you are preparing a development application or advising on biodiversity impacts, our Planning and Environment team can help you navigate these complexities and mitigate legal risks. Contact us today to discuss your project and ensure compliance with both the BC Act and EP&A Act.