The most significant changes to NSW biodiversity laws in at least a decade provide new opportunities and obligations for developers, infrastructure providers, resources industry operators and land owners.
On Thursday 17 November, the Biodiversity Conservation Bill 2016 and Local Land Services Amendment Bill 2016 passed both houses of the NSW Parliament.
Previously, we have discussed the sweeping biodiversity and native vegetation reforms proposed by the NSW Government following a commitment to implement all 43 recommendations of the 2014 Independent Biodiversity Legislation Review Panel.
When the new legislation comes into force:
- the Biodiversity Conservation Act 2016 (Biodiversity Act) will replace the Threatened Species Conservation Act 1995, Native Vegetation Act 2003 and National Parks and Wildlife Act 1974 (animal and plant provisions only); and
- the Local Land Services Act 2013 (LLS Act) will be amended.
We discuss some of the key changes below that will come into force on commencement of the legislation.
New rural land management framework
Clearing some areas of land will be deregulated through allowable activities and codes of practice, while obtaining formal approval for clearing activities will be subject to consideration of any social, economic and environmental impacts.
Controversial land management codes of practice will undergo further public exhibition in early 2017. However, the NSW Government has outlined that the maximum land that can be cleared under the new codes is 625 hectares over three years, with an obligation to set aside two to five times that area for conservation.
Some of the key elements of the new frameworks are outlined below.
New criteria for determining land on which the impacts on native vegetation are or are not regulated
All land will be:
- Category 1 (exempt land): clearing of native vegetation without authorisation under the LLS Act is permitted; or
- Category 2 (regulated land): clearing of native vegetation is regulated under the LLS Act and some authorisation is required. Vulnerable land under this category will also be provided additional protection (eg. riparian land).
The NSW Office of Environment and Heritage is currently preparing a native vegetation regulatory map to identify these categories.
Transitional arrangements will apply until the map is completed, and further engagement with land owners will occur in early 2017.
New allowable activities (without approval)
Allowable activities permit impacts on regulated native vegetation associated with routine land management activities without approval (eg. environmental protection works).
Greater flexibility is provided to land owners and Local Land Services.
More transparent requirements will reduce native vegetation impacts where possible.
New codes of practice permitting native vegetation impacts on regulated rural land
Low-risk clearing will require notification to Local Land Services.
Higher risk clearing will require certification from Local Land Services.
Codes of practices will include conditions and limits on clearing and restrictions for sensitive land and vegetation types.
Some codes of practice will require the creation of a "set aside area" in exchange for clearing. This area is to be managed for biodiversity outcomes in perpetuity, binding current and future land owners.
The Minister may make relevant codes of practices. Revised draft codes of practice are to be publicly exhibited in early 2017.
New clearing approval process for formal approval
Decisions on requests for approval to clear native vegetation must consider the social, economic and environmental impacts.
A new, independent assessment panel will be responsible for considering clearing applications.
Where approval is granted, the panel will be required to impose a biodiversity credit retirement obligation as a condition of approval, to offset the biodiversity impacts of clearing. The panel may vary the credit obligation with regard to social, economic and environmental impacts.
New market-based system for biodiversity offsets
A new biodiversity offsets scheme is a key features of the NSW Government's reform package.
The NSW Government has promoted the new market based system for avoiding, minimising, measuring and offsetting biodiversity impacts of development as providing flexible options for developers and strategic regulatory oversight for public authorities.
Biodiversity Assessment Method (BAM)
A single, uniform pathway to assess the impact of actions on threatened species, threatened ecological communities and their habitats, and the impact on biodiversity values.
The new scheme replaces a number of existing biodiversity assessment methodologies in order to provide more efficient and consistent assessments of biodiversity impacts and calculation of offsets.
Development subject to the new biodiversity offsets scheme includes:
- development needing consent under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act); and
- major projects.
Public authorities may elect for development under Part 5 of the EP&A Act to be subject to the new biodiversity offsets scheme.
"Serious and irreversible" biodiversity impact threshold
Consent authorities must refuse development under Part 4 of the EP&A Act if "serious and irreversible" impacts on biodiversity values would result from the proposed development (unless the development is State significant development (SSD)).
"Serious and irreversible" impacts will be a relevant consideration for consent authorities when determining applications for SSD or State significant infrastructure (SSI) projects. A consent authority must determine whether any additional and appropriate measures should be imposed to minimise "serious and irreversible" impacts when granting consent.
Development consent and biodiversity offsets
Proponents may be required to retire a certain number and type of biodiversity credits as determined under the BAM as a condition of development consent. The extent of this credit retirement obligation may be reduced having regard to social, economic and environmental impacts. This is also a relevant consideration for the consent authority when determining major project applications.
Biodiversity offsets obligations
To discharge a credit retirement obligation, biodiversity credits may be sourced from an open market.
Alternatively, in some situations, proponents may satisfy a credit retirement obligation through payment of an equivalent monetary amount into the Biodiversity Conservation Fund administered by the new Biodiversity Conservation Trust. This allows for a developer to pass the responsibility for sourcing the required biodiversity credits to the Trust.
Biodiversity certification of land
A new streamlined biodiversity certification process will allow for efficient assessment and upfront certainty about biodiversity impacts and costs.
Risk-based assessment of native plant and animal interactions
The NSW Government announced an additional $100 million over five years for the Saving our Species program to accompany regulatory changes that aim to:
- improve listing of threatened species and ecological communities;
- increase penalties for causing harm; and
- increase protections for areas of land that have been identified as having outstanding biodiversity value.
A new risk-based approach to the regulation of interactions with native plants and animals will also ensure that high and low risk activities will be separately regulated.
High risk activities
A biodiversity conservation licence is required.
Conditions may include minimum standards for the treatment of animals, keeping of records and any other conditions the Environment Agency Head considers appropriate in the circumstances.
Low risk activities
A biodiversity conservation licence is not required.
Relevant activity may be permissible under a code of practice or subject to no regulation.
New arrangements for private land conservation
Existing private land conservation arrangements will be replaced by the following tiered agreements.
Biodiversity stewardship agreements (Tier 1)
These replace biobanking agreements. They allow the Minister to enter into an agreement for the purpose of establishing a biodiversity stewardship site. They operate in perpetuity and may provide land owners with annual payments if they undertake specified management actions. The BAM will quantify anticipated improvements arising from the agreement and generate biodiversity credits.
Land owners may sell biodiversity credits in the biodiversity offsets market or retire biodiversity credits to meet a credit retirement obligation. The Biodiversity Conservation Trust may also purchase and retire biodiversity credits as part of a private land conservation program.
Conservation agreement (Tier 2)
These allow the Biodiversity Conservation Trust to enter into an agreement relating to land with the owner of the land for the purpose of conserving or studying the biodiversity of the land. Generally, these agreements relate to land with high conservation value requiring appropriate management to protect existing values and may operate permanently or for a specified period.
They will require a land owner to restrict development on the land and require the owner to carry out specified activities or requiring the owner to contribute towards costs incurred which relate to the land or the agreement.
The NSW Government has stated that these agreements will enable direct government investment in biodiversity outcomes on private land, with a commitment of $240 million over five years.
The NSW Government also announced the commencement of two pilot programs to test and improve the new framework:
- Strategic land use map in a regional NSW area that defines high, moderate and low conservation values at a landscape scale and identifies potential high-value agricultural land; and
- Strategic biodiversity certification agricultural applications: development of two applications that investigate the viability of biodiversity certification in an agricultural setting (focusing on areas with a high proportion of remnant vegetation or with prevalent native grasslands).
We expect that the new legislation will commence from mid-2017. Further public consultation will be held for new instruments that support the new legislation, including:
- the supporting regulation;
- the Native Vegetation Regulatory Map;
- a draft State Environmental Planning Policy for Urban Vegetation (early 2017);
- draft Biodiversity Assessment Method, wildlife management codes of practice and land management codes of practice (early 2017); and
- a new accreditation program for wildlife rehabilitation and rescue services (commencing early 2018).
Stakeholders should watch this space as a number of key supporting instruments will be introduced in 2017 and submissions may be required.
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.