Australia: Biodiversity and environmental offsets

Environment & Planning National Review 2016
Last Updated: 5 September 2016
Article by Karen Trainor


Advanced environmental offsets

In August 2015, the Department of the Environment released for consultation its "Draft Policy Statement: Advanced environmental offsets under the EPBC Act". Consultation on the draft policy concluded in October 2015, and the final policy was released in February 2016.

The EPBC Act Environmental Offsets Policy that was finalised in 2012 encourages the use of advanced environmental offsets, recognising that impacts of an action can be minimised by avoiding offset time delays.

Offsets that deliver a conservation gain after the commencement of the EPBC Act (16 July 2000) can be considered as advanced environmental offsets. Under the draft Policy, proponents would also need to show that the site was established for the purposes of advanced offsetting, that there is a sufficient baseline information to enable a clear assessment of the conservation benefit and that offsets are additional to other obligations.

There are a number of advantages to the use of advanced environmental offsets. In addition to improved conservation outcomes, proponents are likely to have smaller offset requirements (as risk of delivery and time-lag for delivery are reduced) and the post-approval timeframes for offsets to be accepted are either removed or reduced. Proponents or third parties proposing advanced environmental offsets do however need to take care with advanced environmental offsets that the offset not only is acceptable to the Department, but also is suitable for the action (or actions) it is proposed to offset. Offsets will not be considered by the Minister as part of the original controlled action decision under the EPBC Act.


NSW Government releases a comprehensive biodiversity and native vegetation reform package

The Independent Biodiversity Legislation Review Panel presented its final report of New South Wales biodiversity legislation and policy to the Minister for the Environment on 18 December 2014. While there was no formal NSW Government response to the final report, the NSW Government stated that it would adopt all 43 recommendations made by the Panel.

In May 2016, the NSW Government released its long-awaited draft reform package for biodiversity conservation and native vegetation management.

Key features of the reform package include a draft Biodiversity Conservation Bill. This would establish:

  • a new Biodiversity Assessment Method to assess biodiversity impacts via a single, uniform biodiversity assessment pathway;
  • revised offset rules that adopt an "avoid, minimise, offset" principle for development proposals and a "like for like or better" offset standard; and
  • a New Biodiversity Conservation Fund for discharging offset obligations;

The package also proposes amendments to the Local Land Services Act 2013 to address native vegetation land management in rural areas, including:

  • a Native Vegetation Regulatory Map showing designated areas (exempt, regulated and excluded land) for clearing of native vegetation; and
  • various Land Management Codes of Practice permitting various land management and clearing activities.

Finally, the Government is proposing to repeal the Native Vegetation Act 2003, Threatened Species Conservation Act 1995 and parts of the National Parks and Wildlife Act 1974.

The draft Biodiversity Conservation Bill takes an outcomes-focused, integrated and risk-based approach to biodiversity conservation and simplifies the current legislative framework. Its objects are:

  • to conserve biodiversity and ecological integrity at bioregional and State scales;
  • to facilitate ecologically sustainable development; and
  • to improve and share knowledge, including local and Aboriginal knowledge, about the status and values of biodiversity and ecosystem services and the effectiveness of conservation actions.

The public consultation period ended for the reform package ended on 28 June 2016.

The Government has indicated it would like to have legislation in placed to implement the reform package by the end of 2016. We think that any new legislation would be implemented in a phased, transitional approach over several months in 2017.


Implementation of Environmental Offsets Act and new guidance material

In July 2014 the Queensland Government introduced a new framework for environmental offsets. This included:

  • the Environmental Offsets Act 2014 (Qld);
  • the Environmental Offsets Regulation 2014; and
  • The Queensland Environmental Offsets Policy.

The Environmental Offsets Act 2014 (Qld) co-ordinates the delivery of environmental offsets and the Environmental Offsets Regulation 2014 provides details of prescribed activities regulated under existing legislation and matters to which the Environmental Offsets Act 2014 (Qld) applies. The Queensland Environmental Offsets Policy provides a whole-of-government policy for the assessment of offset proposals.

An environmental offset may be required as a condition of an approval where an activity is likely to result in significant residual impact on prescribed environmental matters. The Significant Impact Guideline aids in determining if a residual impact from a prescribed activity is likely to be significant.

The Queensland Environment Offsets Policy outlined that offsets can be delivered through financial settlements, proponent-driven offsets (such as land-based offsets and/or the delivery of actions in Direct Benefit Management Plans) or a combination of both. Direct Benefit Management Plans are pre-approved package investments that outline priority actions in particular prescribed environmental matters. Numerous tools and templates are available in assisting proponents their offset commitments.

"Queensland offsets can be delivered through financial settlements, proponent-driven offsets, or both."

The Environmental Offsets Act 2014 (Qld) requires administering agencies to make a register of offsets publicly available for inspection, which is available here. The Vegetation Management Reinstatement and Other Legislation Amendment Bill 2016 amends the Environmental Offsets Act to provide that environmental offsets will be required to counterbalance any "residual impact" of particular activities on a prescribed environmental matters. Further details on this Bill are discussed below.

Queensland – changes to native vegetation clearing laws

Amendments to the Sustainable Planning Regulation 2009 (Qld) affecting exemptions for approvals for clearing native vegetation commenced in September 2015.

The amendments:

  • replaced previous clearing exemptions for roadworks and ancillary works on State-controlled and future State-controlled roads, and routine transport corridor management on rail, non-rail and commercial corridor land with a more general exemption for government supported community infrastructure for transport; and
  • restrict the clearing exemption for community infrastructure to land that is subject to a community infrastructure designation.

Transitional provisions apply to clearing where:

  • a development application for community infrastructure is made before 1 September 2015 but not decided before 2 August 2013; and
  • a development approval is given (on or after 2 August 2013); and
  • clearing for the approved development, in relation to one of the amended exemptions listed above, takes place after 1 September 2015.

Reinstatement of vegetation clearing laws

On 17 March 2016, the Government introduced the Vegetation Management Reinstatement and Other Legislation Amendment Bill 2016. The Bill contains significant amendments to a number of Acts, including the Vegetation Management Act 1999, Water Act 2000 and Environmental Offsets Act 2014.

Its primary policy objective is to reinstate the vegetation management framework that was in existence prior to 2013, by:

  • reinstating restrictions on the clearing on high value regrowth on freehold and indigenous land;
  • prohibiting the clearing of vegetation mapped as high value agriculture or irrigated high value agriculture;
  • reinstating the reverse onus of proof for unlawful clearing offences . owners and occupiers of land on which there has been unauthorised clearing are presumed to be responsible in the absence of contrary evidence; and
  • removing the "mistake of fact" defence for vegetation clearing offences.

The Bill also introduces "Category R" restrictions beyond the Burdekin, Mackay-Whitsunday and the Wet Tropics to include the Burnett-Mary, Eastern Cape York and Fitzroy catchments. Category R vegetation is native vegetation located within 50 metres of a regrowth watercourse, identified on a regulated vegetation map.

Land mapped as Category R is subject to self-assessable clearing codes that allow landholders to undertake vegetation clearing without the need for a development approval if the clearing code can be complied with. Landholders are required to give notice to the Department of Natural Resources and Mines before the commencement of clearing. If the code cannot be complied with, a development approval will be required.

The Bill amends the Environmental Offsets Act to provide that environmental offsets will be required to counterbalance any "residual impact" of particular activities on a prescribed environmental matters. Currently, under the EO Act an environmental offset can only be required where a prescribed activity will have a "significant residual impact" on a prescribed environmental matter.

The Bill reintroduces the restriction on destroying vegetation in a watercourse, lake or spring without a riverine protection permit. Once enacted, a riverine protection permit would be required before a person could destroy vegetation, excavate or place fill in a watercourse, lake or spring.

The Bill was referred to the Agriculture and Environment Committee which reported back to Parliament on 30 June 2016.


New environmental benefit provisions for native vegetation clearance commence

Amendments were made to the Native Vegetation Act 1991 through the Native Vegetation (Miscellaneous) Amendment Act 2013, which were aimed at providing flexibility for how a significant environmental benefit (SEB) can be achieved.

On 3 December 2015 stage 2 of the SEB reforms was completed with the commencement of the final provisions of the Amendment Act which relate to the credit, assignment and third party establishment of SEBs for native vegetation clearance. The associated Native Vegetation (Credit for Environmental Benefits) Regulations 2015 also commenced on 3 December 2015, which sets out the requirements for applications relating to credit and accredited third party providers.

Generally when an application for the clearance of native vegetation is approved, conditions are attached to the approval to ensure that the clearance is offset by restoration work that provides a SEB. The amendments which commenced in December 2015 provide for credits which can be applied, assigned or achieved by accredited third party providers in order to achieve a SEB to satisfy those approval conditions relating to SEB.

Where a person has achieved the following and the Council is satisfied that it is of a significant value, a credit (at a value determined by Council, monetary or otherwise) may now be applied:

  • an environmental benefit which is not a benefit already required in relation to a consent to clear native vegetation or otherwise (benefit); or
  • an environmental benefit, in accordance with a consent to clear native vegetation, that exceeds the value of the minimum benefit needed to offset the loss of the cleared vegetation (excess benefit).

Where a person has been credited with having achieved an environmental benefit (the assignor) they may, with the written approval of the Council, assign the whole or part of the credit to another person or body (the assignee).

The new provisions also provide that the requirement that an environmental benefit be achieved by a person may, with the written approval of the Council, be satisfied by an accredited third party provider.

Stage 3 of the SEB reforms involved the release of the following policy, guide and manuals for public consultation which closed on 19 February 2016:

  • Policy for Significant Environmental Benefit under the Native Vegetation Act 1991 and Native Vegetation Regulations 2003
  • Guide for calculating a Significant Environmental Benefit under the Native Vegetation Act 1991 and Native Vegetation Regulations 2003
  • Native Vegetation Council Scattered Tree Assessment Manual
  • Native Vegetation Council Bushland Assessment Manual
  • Native Vegetation Council Rangeland Assessment Manual (Draft).

We expect the reforms to be implemented before the end of the 2016 calendar year.

Low carbon investment plan

On 2 December 2015 the State Government released a low carbon investment plan, with the objectives of:

  • providing a $10 billion investment into low carbon energy generation; and
  • targeting that 50% of the State's electricity production to be generated using renewable energy resources by
  • 2025.

The plan follows the Climate Change Strategy 2015- 2050 introduced on 26 November 2015, which had the principal goal of being zero net emissions by 2050. The Strategy proposes to amend the Climate Change and Greenhouse Emissions Reduction Act 2007 (SA) to reflect the new emission target.

Pastoral Land Management and Conservation (Renewable Energy) Amendment Act 2015 (SA)

On 19 September 2015, the Pastoral Land Management and Conservation (Renewable Energy) Amendment Act 2015 (SA) was enacted. Under it:

  • wind farm developers are able to apply for licences to build and operate a wind farm on Crown land that is subject to a pastoral lease;
  • wind farms can co-exist with pastoral leaseholders; and
  • access to pastoral land for solar energy projects is expedited.

The Act works in conjunction with the Climate Change Strategy 2015-2050 and the Low Carbon Investment Plan.


Tasmanian Wilderness World Heritage Area Management Plan Update

In 2015, the Department of Primary Industries, Parks, Water and Environment began a review of the Tasmanian Wilderness World Heritage Area Management Plan.

The Plan governs the planning and management of the Tasmanian Wilderness World Heritage Area, an area occupying almost a quarter of Tasmania which is recognised as a World Heritage Property in the World Heritage Convention. Under the World Heritage Convention, Australia must identify, protect, conserve, present and transmit the cultural and natural heritage of the Area.

The majority of the Area is managed according to a Plan developed in 1999. There have been a number of extensions to the Area in 2012 and 2013 and the Plan is now outdated. As a result, the Department consulted on and released a new draft Plan.

The draft Plan contains a number of changes, particularly regarding the permitted use of the Area. The draft Plan will permit special species timber harvesting and does not explicitly deal with mining, unlike the existing Plan which expressly restricts it. UNESCO has stated that mineral exploration and exploitation is incompatible with world heritage status and has sought amendment to the draft Plan on this basis. The draft Plan also allows low-scale tourism ventures in the Area through a Tourism Master Plan.

The Minister is expected to determine the final Plan in the second half of 2016.

Regional Forest Agreement likely to continue

The Tasmanian Regional Forest Agreement, an intergovernmental agreement between the Tasmanian and Australian Governments providing for the sustainable management of Tasmania's forests, was reviewed in 2015.

The Agreement was established in 1997 and applies for 20 years with five-yearly reviews.

After a period of public consultation, the independent reviewer, Dr Glen Kile, has issued a report making 16 recommendations to take the Agreement forward. The Tasmanian and Australian Governments made a joint response to the recommendations in April 2016, concluding the third five-yearly review of the agreement.

In responding to the report, both Governments stated their commitment to the agreement as the appropriate mechanism to balance the environmental, social and economic values of forests within Tasmania into the future.


Changes to the specific offsets requirements

On 21 October 2015, the Department of Environment, Land, Water and Planning amended the method of calculating specific offset requirements for rare or threatened species habitat for site clearing.

The new method is now consistent with the method used to calculate specific offsets available at offset sites, ensuring that the biodiversity assessment guidelines regarding clearing of native vegetation are streamlined. The amendment reduces the species habitat area used to calculate Specific Biodiversity Equivalence Units from the native vegetation area determined by the habitat hectare assessment, to the species area shown on the species habitat importance map. This change has the potential to reduce or negate offset obligations for projects that would otherwise need specific offsets.

The changes do not affect applicants with only general offset requirements, or the amount of specific offsets held by credit owners or offset providers. Relevant permit applicants should contact the Department to request their data be reprocessed in line with the new obligations.


Perth and Peel Green Growth Plan

In 2015 the Western Australian Planning Commission commenced drafting strategic land use planning documents for the Perth and Peel area. The Perth and Peel region is projected to have a population of 3.5 million people by 2050. The Commission drafted four planning frameworks for the different sub-regions of the area; these frameworks were released for public comment in May 2015.

In August 2015 the Environmental Protection Authority released an interim strategic advice in relation to the Perth and Peel region. The report recommended large-scale offsets to address multiple values rather than a single species. This illustrates a shift towards a "broader environmental" approach rather than targeted species or ecological communities. The Authority recommended that the State Government develop an offset policy framework for future development in the Perth and Peel region which focuses on rehabilitation and revegetation of degraded areas generally to achieve a net improvement in habitat and other environmental values.

"The EPA's interim strategic advice illustrates a shift towards a "broader environmental" approach."

On 17 December 2015, the Department of Planning released the draft Perth & Peel Growth Plan. It is designed to accommodate the estimated populated growth and minimise cumulative environmental impacts by:

  • securing upfront Commonwealth environmental approval and streamlining State environmental approvals for the development required to support the projected growth in population; and
  • >
  • developing a conservation plan to protect bushland, rivers, wildlife and wetlands.

The draft Plan sets out the following development actions which will require approval:

  • urban and industrial development;
  • rural residential development;
  • infrastructure development;
  • basic raw materials extraction; and
  • harvesting of pine plantations.

The draft Plan's conservation program includes the following initiatives:

  • protection of 170,000 ha of new and expanded conservation regions;
  • improved protection of Bush Forever sites;
  • establishment of the Peel Regional Park;
  • implementation of an action plan to cut nutrient run-off into the Swan Canning and Peel Harvey estuaries and a long-term plan to ensure the health of these systems; and
  • implementation of a program of on-ground management to improve protection of threatened species, wetlands of international significance and threatened ecological communities.

The public consultation period ended on 13 May 2016. The release date for the final documents has not yet been announced.

Biodiversity Conservation Bill 2015

On 25 November 2015, WA Environment Minister Albert Jacob introduced the Biodiversity Conservation Bill 2015 (WA) to the Legislative Assembly to repeal the outdated Wildlife Conservation Act 1950 (WA) and the Sandalwood Act 1929 (WA) and to introduce penalties of up to $2.5m.

The objectives of the Bill are:

  • to conserve and protect biodiversity and biodiversity components in the State; and
  • to promote the ecologically sustainable use of biodiversity components in the State.
  • The key new elements of the Bill are:
  • listing of ecological communities, threatening processes and critical habitats by the Minister for Environment with differing levels of protection;
  • increased penalties for taking, or disturbing listed flora and fauna without lawful authority; and
  • providing for programmes, plans and conservation agreements and covenants.

It also defines "disturbing" as:

  • in relation to fauna, to chase, drive, follow, harass, herd or hunt fauna by any means, to apply an identifier to fauna by any means, to engage in an activity that has the effect of altering the natural behaviour of fauna to its detriment;
  • in relation to flora, to engage in an activity that has the effect of altering the long term persistence of the flora in its habitat; and
  • in both cases to cause or permit an activity which would "disturb" the flora or fauna.

New Western Australian Biodiversity Science Institute

On 15 October 2015 Premier and Science Minister Colin Barnett launched the new Western Australian Biodiversity Science Institute, a collaboration between government agencies, research institutions and industry groups.

The Institute aims to protect and conserve WA's unique flora and fauna through facilitating scientific studies into WA's biodiversity and ensuring the information is available to the government, industry, land managers and other stakeholders. It proposes to consolidate the knowledge of different groups and use this knowledge to manage research and develop a database consolidating the information for public use.

The key areas of focus for the Institute are:

  • creating an information management system consolidating research by research agencies and industry through a public database;
  • undertaking and co-ordinating a biodiversity survey of WA;
  • investing in the understanding of the processes and threats to the biodiversity of WA; and
  • collaborating with industry and researchers to restore and conserve biodiversity.

The Institute currently manages more than $60m of fully-funded research and aims to attract additional research funding to WA.

Continuous Emission Monitoring System Updates

The Department of Environment Regulation has updated its guideline on Continuous Emission Monitoring System Code for Stationary Source Air Emissions. The guideline does not apply directly to industries but can be prescribed to apply through licence conditions.

The updates in the guideline relate to formatting and administrative edits.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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