Australia: Environmental Offsets Bill: a new foundation for Queensland environmental offset regulation


On 13 February 2014, the Queensland Government introduced the Environmental Offsets Bill 2014(Bill) into Parliament, which will establish a new overarching framework for the regulation of environmental offsets in Queensland.

The Bill aims to simplify and streamline the assessment, approval and delivery of environmental offsets in Queensland. The Explanatory Memorandum to the Bill explains that multiple offset policies in Queensland have led to an 'inconsistent, complex and onerous regulatory framework with little coordination in the assessment and delivery of environmental offsets across the State'. The Bill intends to 'coordinate Queensland's environmental offsets framework, giving effect to a whole of government approach and replacing the complexities surrounding the five existing policies'.


In Queensland, offsets are currently administered through the following general and specific issue offset policies:

  1. Queensland Government Offsets Policy;
  2. Biodiversity Offsets Policy;
  3. Policy for Vegetation Management offsets;
  4. Offsets for Net Gain of Koala Habitat in Southeast Queensland Policy; and
  5. Marine Fish Habitat Offset Policy.

In addition, at the national level, the Federal Government can impose offset conditions under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) in accordance with its Environmental Offsets Policy (October 2012).

Offsets can be secured either by:

  1. land-based direct offsets secured by a legally binding mechanism such as protected area estates (for example, nature refuges) under the Nature Conservation Act 1992 (Qld) (NC Act);
  2. declarations under the Vegetation Management Act 1999 (Qld) (VMA); or
  3. covenants under the Land Act 1994 (Qld) or the Land Title Act 1994 (Qld).

An alternative to direct offsets is an offset payment, which allows a project proponent to meet its offset obligation at the time of approval. In Queensland, offset payments under the Queensland Biodiversity Offsets Policy have been required to be made to the Balance the Earth Trust for the purpose of purchasing land containing State-significant biodiversity values. Offset payments are not permitted in all circumstances. For example, offset payments are not permitted under the Biodiversity Offsets Policy where the impact area is a legally secured area under the VMA or contains extinct in the wild, endangered, vulnerable and special least concern animal wildlife.

The Queensland Department of Environment and Heritage Protection (EHP) requires offset payments to be calculated using its offset payments calculator, which takes into account land value, administration costs and management costs.

It is intended that the Bill will establish a common statutory framework upon which offset conditions will be imposed on development approvals that have been granted under other Acts (for example, an offset condition imposed on a development approval under the Sustainable Planning Act 2009 (Qld)). This will be achieved by, among other things, replacing the existing five separate environmental offset policies in Queensland with a single State environmental offset policy.

Key terms

It is important first to understand the key terms that underlie the Bill. The Bill states that an administering agency may (under another Act) impose an offset condition on an authority for a prescribed activity for a prescribed environmental matter that:

  1. requires an environmental offset to be undertaken; or
  2. otherwise relates to an environmental offset.

The Bill then goes on to set out a number of key terms upon which the new offsets framework is based. These include:

  1. a prescribed activity is an activity:
    1. the subject of an authority under another Act;
    2. for which an offset condition may be imposed under the other Act on the authority;
    3. that is prescribed under a regulation
  1. a prescribed environmental matter is any of the following matters prescribed under a regulation to be a prescribed environmental matter:
    1. a matter of national environmental significance - a matter of national environmental significance under the EPBC Act and the subject of an approval under the EPBC Act;
    2. a matter of State environmental significance - a matter of environmental significance that is dealt with under State law; or
    3. a matter of local environmental significance - that is a matter of environmental significance dealt with under a local planning scheme or planning scheme policy made by a local government.
  1. an environmental offset is an activity undertaken to counterbalance a significant residual impact of a prescribed activity on a prescribed environmental matter.
  2. a significant residual impact is an adverse impact, whether direct or indirect, of a prescribed activity on all or part of a prescribed environmental matter that:
    1. remains, or will or is likely to remain (whether temporarily or permanently) despite on-site mitigation measures for the prescribed activity; and
    2. is, or will or is likely to be, significant.

These key terms will be further defined in the supporting regulations which are yet to be publicly released.

Environmental Offsets Policy

The Bill provides for an environmental offsets policy to be prescribed under a regulation. As stated above, this regulation is yet to be released. As a result, a full appreciation of the operation of the proposed environmental offsets regime is not yet possible.

While the Bill allows for an environmental offsets policy to be prepared by the State Government or a local government, it will only become an offset policy under the Act (when passed) if the document is prescribed by regulation. According to the Explanatory Memorandum to the Bill, the rationale behind this is to ensure that the State is able to ensure consistency and to avoid the creation of multiple overlapping offset policies.

An environmental offsets policy may (but is not required to) do any or all of the following:

  1. set out the circumstances in which an environmental offset may or may not be required;
  2. set out the characteristics of an area that is suitable for undertaking an environmental offset;
  3. provide for the ongoing management and monitoring of, and reporting about, an environmental offset;
  4. provide for deciding the size and scale of an environmental offset so the offset is proportionate to the significant residual impacts on a prescribed environmental matter; or
  5. any other provision relating to the main purpose of the Act (when passed).

An environmental offsets policy has yet to be released.

Offset conditions

Where an administering agency has the power to impose an offset condition, it can only do so, if:

  1. the prescribed activity will, or is likely to have, a significant residual impact on the prescribed environmental matter; and
  2. all cost-effective on-site mitigation measures for the prescribed activity have been, or will be undertaken.

This proposed new threshold of 'significant residual impact' indicates a substantial lowering of the current standard of 'ecological equivalence' under existing Queensland biodiversity and vegetation offset arrangements. As a result, project proponents would no longer have to offset all residual impacts of a proposed development, but rather, only offset impacts that are likely to be 'significant'. It is likely that this will lead to a reduction in the number of environmental matters requiring offsets. The rationale behind this change is explained in the Explanatory Memorandum to the Bill, specifically, that industry stakeholders considered the process for measuring ecological equivalence as 'too expensive and time consuming'.

Another notable element of this proposed threshold is that offset conditions cannot be imposed to address impacts that may be cost-effectively avoided or minimised. In effect, this would allow project proponents to rely on an offset arrangement in the event that the assessment manager is persuaded that on-site mitigation of a significant impact would not be 'cost-effective'.

In order to prevent the duplication of offset conditions, the Bill provides that a State or local agency is precluded from imposing environmental offset conditions where the Commonwealth has imposed an environmental offset condition for the same environmental matter for substantially the same impact in substantially the same area (unless the condition relates to a protected area). Similarly, the Bill stipulates that a local government cannot impose an offset condition that duplicates an existing State offset condition for the same matter for substantially the same impact in substantially the same area.

Types of offsets

There are two types of offsets established under the Bill:

  1. a proponent driven offset, which is an environmental offset which is undertaken by the authority holder. The offset can be delivered either directly by the authority holder on its own land, or indirectly by someone else on behalf of the authority holder (for example, by contracting with a broker); and
  2. a financial settlement offset, which is a payment made by an authority holder to the relevant local government (in the offset relates to a matter of local environmental significance) or to the department administering the Bill (in all other circumstances). In deciding the amount required as a financial settlement offset, the administering agency must calculate the amount in accordance with a process to be prescribed by regulation. Once the financial settlement offset is paid, responsibility for the delivery of the offset then transfers to the relevant local government or department. The calculation process and methodology has yet to be made publicly available.

Offset delivery options

There will be a number of 'deemed conditions' established by the Bill that will apply when an offset condition is imposed on an authority under another Act. If an authority holder (or a person acting under an authority) contravenes a deemed condition, the Bill provides that that person may be dealt with under the Act under which the authority was granted as if the person had contravened an offset condition imposed under that Act.

The deemed conditions require an authority holder to do the following before starting a prescribed activity:

  1. elect (by a notice of election to the administering agency) whether it will satisfy the offset condition by either a proponent driven offset, a financial settlement offset or a combination of these options; and
  2. agree with the administering agency about the delivery of the offset condition.

If the authority holder elects a proponent driven offset, the notice of election must be accompanied by an offset delivery plan which details how the authority holder will undertake the offset and the conservation outcome will be achieved as well as a number of other requirements which are outlined in the Bill and that may be prescribed by regulation at a later date. In addition, the offset delivery plan must be signed by the authority holder and any entity that owns land on which the environmental offset will be undertaken. Once a delivery arrangement is agreed, the deemed conditions require that the authority holder comply with the agreed delivery arrangement, including the agreed offset delivery plan.

The Bill provides no guidance as to the timeframes for the administering agency to give the authority holder notice as to whether it agrees to the proposed delivery method, which may prove problematic in practice. The Explanatory Memorandum to the Bill explains that a regulation 'may provide for a dispute resolution process' in the event that an authority holder and the administering agency cannot reach agreement 'within a stated reasonable time'.

Legally secured offset areas

A legally secured offset area is defined under the Bill as an area of land or waters that is either an environmental offset protection area, an area of high nature conservation value under the VMA or another area prescribed under regulation. However, the area is only a legally secured offset area if the area is subject to a delivery or management plan or agreement (however described) to achieve a conservation outcome. In addition, an area is a legally secured offset area for the purposes of the Bill if, after an environmental offset condition is imposed or agreement entered into in relation to the area, the area is dedicated or declared by regulation as a national park, conservation park, resources reserve or nature refuge under the NC Act.

An environmental offset protection area is a new mechanism to be established by the Bill for legally securing an offset area. The chief executive may declare that an area is an offset protection area upon application by the relevant landowner. A single declaration can be made over several parcels of land (even parcels that are not adjacent) or comprise parcels owned by different persons. However, the chief executive cannot make the declaration unless it reasonably believes that each person that has an interest (for example, a mining interest) in the subject land has consented to the declaration. In order for the declaration to be made, an environmental offset agreement (which is binding on landowners, successors in title, and those with a registered interest in the land) must be entered into between the relevant chief executive or local government and the relevant entity in relation to the delivery of the environmental offset. The Bill provides the minimum requirements of an environmental offset agreement and allows a regulation to make further provision about these agreements in the future. Non-compliance with an environmental offset agreement may result in an offence being committed under the Bill.

A further deemed condition of the Bill prohibits an authority holder from carrying out prescribed activities in a legally secured offset area if the activity will delay, hamper, or stop the delivery of the conservation outcome under the relevant delivery or management plan or agreement.

Major projects exemption

The Bill does not limit or affect the function or powers of the Coordinator General under the State Development and Public Works Organisation Act 1995 or decisions and obligations of other agencies arising from those functions or powers.

The consequence of this is that the Bill and proposed offsets framework will not apply to coordinated projects (such as large infrastructure or resource projects) assessed by the Coordinator General. Accordingly, it is possible that these types of projects may be subject to less rigour in terms of offset obligations and conditions.

Relationship with the EPBC Act

The Bill is designed to provide for Commonwealth accreditation of the State Government environmental offsets assessment process. This would potentially enable the State to carry out assessment on behalf of both levels of government for matters of national environmental significance, removing duplication of environmental offset assessments.

However, this may prove difficult to achieve in practice given that the proposed new Queensland offsets regime is generally less rigorous than the current Federal position. For example, the Federal Environmental Offsets Policy under the EPBC Act requires project proponents to undertake almost exclusively 'direct' compensatory measures (i.e. those actions that provide a measurable conservation gain for an impacted protected matter), whereas the Bill does not require this.

Next steps

The Bill was referred to the Agriculture, Resources and Environment Committee for consideration on 13 February 2014.

The Committee is due to report to Parliament on the Bill on 28 April 2014 after taking into account public submissions. The closing date for public submissions is 24 March 2014.

It is expected that the single environmental offsets regime will come into force by mid-2014.


The Bill appears to be a significant step in the right direction in terms of affording greater efficiency, flexibility and clarity in Queensland's environmental offsets regime, which (along with a reduction in the threshold for requiring environmental offsets) would no doubt be of great benefit to project proponents. However, this position is ultimately dependant on further important documents which are yet to be released, such as the Environmental Offsets Policy and an accompanying regulation for the Bill.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Andrew Muir
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.