Australia: BAM, BOS, Boom? – New biodiversity laws to commence in NSW in 2017

Last Updated: 13 December 2016
Article by Bianca Fernandes

Most Read Contributor in Australia, July 2017

Earlier this year, the NSW Government released its proposed Biodiversity Conservation Reform Package including two draft bills to replace long standing pieces of environmental legislation, including the Threatened Species Conservation Act 1995 and substantially overhaul biodiversity laws in NSW (see our previous article here).

After a period of public consultation, the Biodiversity Conservation Act 2016 (BC Act) and Local Land Services Amendment Act 2016 were assented to on 23 November 2016 and are scheduled to commence in mid-2017. The key changes to biodiversity laws in NSW are summarised in more detail below.

New biodiversity conservation legislation

The Threatened Species Conservation Act 1995 (TSCA) and parts of the National Parks and Wildlife Act 1974 (NPWA) (for example, the threatened species offence provisions) are to be repealed and replaced by the BC Act. As a result, the matters relating to the listing of threatened species, biodiversity impact assessment, offsetting and related offences will now be contained within a single act.

Protection of Plants and Animals

A new system for listing and protection of threatened species and threatened ecological communities is created under the BC Act. The BC Act also adopts a "risk-based approach" to regulating interactions with native plant and animals. For example, low risk activities would be exempt under the regulations, as well as certain activities being able to be carried out in compliance with a code, without the need for a licence.

The BC Act creates offences for harming animals and picking plants, as well as damaging areas declared to be of outstanding biodiversity value and damaging habitat. Defences are available, including authorisation under a biodiversity conservation licence. The BC Act also specifies the procedure for listing threatened species and ecological communities.

Biodiversity Offset Scheme

The biodiversity offset scheme (BOS) will replace the current biobanking scheme found in the TSCA and provides a new process for the assessment and offsetting of impacts on biodiversity values in connection with proposed development.

Where proposed development or clearing has an impact on biodiversity values above a certain threshold (BOS Threshold) (yet to be determined), a biodiversity development assessment report (BDAR) will be required to be prepared by accredited assessors. The report will determine the impacts of proposed actions on biodiversity values and the biodiversity conservation measures (including the retirement of credits) needed to avoid or minimise that impact.

The assessment of biodiversity values on land and the impacts of activities on those biodiversity values are to be carried out in accordance with the Biodiversity Assessment Method (BAM). The BAM is to be established by the Minister administering the BC Act by order and published on the NSW legislation website. When establishing the BAM, the Minister is to adopt a standard that will result in no net loss of biodiversity in NSW.

Biodiversity credits can be generated on 'biodiversity stewardship sites'. Agreements will be entered into that specify management actions required to be carried out on biodiversity stewardship sites. As an alternative to the retirement of biodiversity credits, payment can be made into the newly established Biodiversity Conservation Fund.

Development that is subject to the BOS scheme includes development needing consent under Part 4 of the EP&A Act (excluding complying development), activities under Part 5 of the EP&A Act, State significant development and State significant infrastructure.

Where development or an activity is, "likely to significantly affect threatened species", a BDAR must be prepared and consent authorities are required to consider the likely impact of the proposed development on biodiversity values before granting approval.

The threshold test of whether development or an activity is "likely to significantly affect threatened species" (and therefore whether a BDAR is required) is reached if:

  • the test in section 7.3 of the BC Act is met;
  • the BOS Threshold is met; and
  • the development is carried in a declared area of outstanding biodiversity value.

Section 7.3 of the BC Act generally mirrors the current provisions of section 5A of the EP&A Act (the assessment of significance, or 7-part test), which was previously used to determine whether or not a species impact statement was required to be prepared under the TSCA. BDARs will therefore replace the requirement to prepare species impact statements, although, under Part 5 a proponent can choose to prepare either a species impact statement or a BDAR.

The BAM and regulations to give effect to the legislation, including regulations that will specify the BOS Threshold, will be exhibited in the first half of 2017.

Biodiversity Certification

The new biodiversity certification scheme will replace the current framework under Part 7AA of the TSCA. Planning authorities and any person with the consent of the landowner can apply to have land certified, the benefit of which is that individual assessments of development and/or activities are not required at the planning approval stage. The certification order specifies approved conservation measures that must be undertaken to offset biodiversity impacts, and includes the retirement of credits and in the case of a strategic application (made by a planning authority) can include:

  • the reservation of land under the under the NPWA;
  • the adoption of development controls or State infrastructure contributions under the EP&A Act; and
  • any other measure specified by the regulations.

It is envisaged that the flexibility of strategic applications may encourage planning authorities to combine biodiversity certification at the strategic planning stage in order to streamline biodiversity assessment and streamline approvals at the DA stage.

Private Land Conservation Agreements

The BC Act introduces a number of private land conservation agreements under which landowners would be paid to protect and conserve biodiversity values on their land. The NSW Government proposes to invest $240 million over 5 years with an additional $70 million in ongoing funding (subject to performance review).

Native Vegetation Reforms

The Local Land Services Amendment Act 2016 (LLSA Act) will, upon commencement, repeal the Native Vegetation Act 2003 and implement a new system to manage and clear native vegetation on rural landholdings.

The LLSA Act creates pathways to permit the clearing of rural land based on classifications under a native vegetation regulatory map, comprising exempt land, regulated land and vulnerable regulated land. The LLSA Act makes provision for amending classifications, reviews and appeals against mapping decisions.

In addition, clearing can be undertaken without approval in regulated areas if it is listed as an 'allowable activity' under Schedule 5A of the LLSA Act, or carried out in accordance with a land management (native vegetation) code.

Implications

The biodiversity reform package was designed to provide updated and streamlined legislation which addressed the inconsistencies between the aging statutory framework and contemporary government policy directions. In addition, the package aimed to protect against further biodiversity loss and manage increased pressures on biodiversity from human activity.1

However, there is criticism from some community groups that the new legislation removes many long-held environmental protections. For example, the BOS relaxes "like-for-like" offsetting and is too heavily reliant on credits.2 There is also evidence of a lack of support from the farming sector in relation to the LLSA Act.3

In addition, the proposed BAM and BOS Threshold is yet to be released for public comment. The details of this regulation is fundamental to the success of the package and whether or not sufficient biodiversity protections are afforded.

However, if implemented successfully, there may be benefits for developers, including the expanded biodiversity certification scheme. Particularly if the scheme is adopted by planning authorities at a strategic planning stage, there will be increased certainty around development footprints and less environmental approvals required at DA stage.

Footnotes

1 A Review of Biodiversity Legislation in NSW, Final Report, 18 December 2014, p 3

2 Environment Defenders Office "Our top 10 concerns with the draft Biodiversity Conservation Bill 2016 and Local Land Services Amendment Bill"

3 Raveen Hunjan, Proposed NSW land-clearing, biodiversity laws dealt blow in submissions, Sydney Morning Herald, 21 September 2016

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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