Australia: NSW biodiversity reform: consultation open ahead of commencement of new legislation in August 2017

What you need to know

• The Biodiversity Conservation Act 2016 and Local Land Services Amendment Act 2016 were passed by NSW Parliament in November 2016 and are set to commence on 25 August 2017, replacing current biodiversity legislation.
• The NSW Government has now released draft regulations and other materials relating to the impending reforms, which canvass a range of topics relevant to businesses in the property development and management and agribusiness sectors.
• Those interested in having a say on the draft regulations or other consultation materials can make submissions up until 21 June 2016.

Three months from now, reforms to biodiversity and land clearing legislation in NSW will come into effect. The NSW Government has opened a new round of consultation on the precise shape that some of those reforms should take, having released a package of information for public comment.

That information includes draft regulations for two pieces of legislation that were passed by NSW Parliament in November 2016 – the Biodiversity Conservation Act 2016 and Local Land Services Amendment Act 2016. Both Acts have been slated to commence on 25 August 2017, but neither include sufficient detail for businesses to truly understand how the legislation will affect them. This means that the regulations, once finalised following the current consultation, will play a crucial role in allowing businesses to understand how their proposed development and other activities may be impacted by new rules and regulations.

The material on exhibition will be particularly relevant for businesses in the property development and management industry as well as the agribusiness sector.

What do the draft regulations and consultation materials cover?

The information open for public comment covers a range of matters including:

• how the biodiversity values of land will be assessed - this will affect the ability to clear land or use it as an offset
• determining whether a development or an activity will have a serious and irreversible impact such that it cannot be approved
• the regulation of clearing of native vegetation on urban land through the State Environmental Planning Policy
• what offsets will be required when land of biodiversity value is cleared for development
• what type of land could be declared an area of outstanding biodiversity value - this will replace the 'critical habitat' concept under current legislation, and any such declarations will be a constraint on development
• the minimum impact on biodiversity that will trigger an assessment, and the likely requirements for offsetting such impacts
• clearing that can occur on farming land without an approval.

The full suite of exhibition materials, including the draft regulations, can be found here.¹

What's the background to the upcoming reforms?

In 2014 the NSW Government asked an independent panel to review the Native Vegetation Act, Threatened Species Conservation Act, the Nature Conservation Trust Act and parts of the National Parks and Wildlife Act relating to threatened species and endangered ecological communities. As a result of the review, the Panel recommended the abolition of the first three pieces of legislation and relevant parts of the National Parks and Wildlife Act, and the introduction of new legislation which became the Biodiversity Conservation Act and Local Land Services Amendment Act 2016.

The legislation name change from 'threatened species' to 'biodiversity conservation' is important and reflective of the more holistic focus of the new legislation. For many conservation biologists the current Threatened Species Act has been reactionary, focusing on species that are on the brink of extinction and zoning in on the concept of 'critical habitat' (being habitat that is critical to the survival of a species). In the new Biodiversity Conservation Act, the 'critical habitat' concept is replaced with 'areas of outstanding biodiversity value' (AOBV).

An AOBV is an area (not necessarily habitat) that makes a significant contribution to multiple species, one ecological community, irreplaceable biological distinctiveness, ecological processes, ecological integrity or is of outstanding ecological value for education or scientific research. As a result, an AOBV could be listed (and development restricted under the new legislation) even if the area does not contain any threatened species or habitat for threatened species.

What's next?

Those interested in having a say on the draft regulations and other materials can make submissions up to 21 June, with further information available here. ²

Following its consideration of comments on the exhibition materials, the NSW Government will continue to develop and refine the regulations before the new legislation takes effect on 25 August 2017. Our team will be reviewing the changes and sharing further updates as developments unfold.

Footnotes

¹ The exhibition materials and an overview of the consultation timeline are accessible at www.landmanagement.nsw.gov.au/.
² Details on how to make submissions are accessible at www.landmanagement.nsw.gov.au/have-your-say.

This article is intended to provide commentary and general information. It 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 article. Authors listed may not be admitted in all states and territories