Australia: Brave new world: NSW biodiversity conservation reforms commence

Sweeping changes to NSW biodiversity laws make statutory credits the currency of offsets for most development, but provide new offsetting alternatives for some major projects.

The long-awaited NSW biodiversity conservation and land management reforms took effect on 25 August 2017, with the commencement of:

  • the Biodiversity Conservation Act 2016;
  • the Local Land Services Act 2013 (LLS Act) as amended by the Local Land Services Amendment Act 2016;
  • the Biodiversity Conservation Regulation 2017; and
  • the Biodiversity Conservation (Savings and Transitional) Regulation 2017.

This legislative package replaces a wide range of biodiversity related legislation, including the Threatened Species Conservation Act 1995 (TSC Act), the biodiversity related parts of the National Parks and Wildlife Act 1974, the Native Vegetation Act 2003 and parts of the Fisheries Management Act 1994.

The reform process began with an Independent Biodiversity Legislation Review in 2014, which proposed a major overhaul of biodiversity laws in NSW, and included an extensive three-year consultation period with key stakeholders and the wider community.

We set out some key components of the new framework under the Biodiversity Act below, focusing on biodiversity offsets.

There are some very important transitional arrangements in the Biodiversity Transitional Regulation, and we have separately explored these in a separate article.

Biodiversity Offsets Scheme

One of the most significant changes is the establishment of a Biodiversity Offsets Scheme, for the impacts on biodiversity values of many kinds of development under the Environmental Planning and Assessment Act 1979 (Planning Act).

The Scheme is similar to the biobanking offsets scheme under the former TSC Act. Offset requirements and offset outcomes under both schemes are measured in terms of biodiversity credits. However, the biobanking scheme under the former TSC Act was effectively voluntary for proponents to minimise and offset impacts on biodiversity, and there were broad principles by which other kinds of offset requirements and arrangements would be assessed (other than biobanking). By contrast, the intention under the Scheme appears to be that all offset calculations and offset arrangements be addressed in terms of biodiversity credits (subject to our comments below on the Biodiversity Conservation Fund).

So biodiversity credits become the likely offset currency under the Scheme.

The kinds of development covered by the Scheme include:

  • local development with impacts above the Scheme Threshold (ie. development which needs development consent under Part 4 of the Planning Act, except for and State significant development (SSD));
  • SSD and State significant infrastructure proposals, unless there is not likely to be a significant impact on biodiversity values;
  • clearing proposals above the Scheme Threshold as regulated by the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 or agricultural clearing proposals under the LLS Act;
  • biodiversity certification proposals; and
  • development which is assessed under Part 5 of the Planning Act (because it does not need development consent), if the proponent opts-in to the Scheme.

The Scheme Threshold is an objective, risk-based test that assesses a proposal against an area trigger (ie. what is the extent of the impact) and a Biodiversity Values map trigger (ie. does the impact fall within an area of high biodiversity value).

The Scheme adopts a new Biodiversity Assessment Method (BAM) to assess biodiversity values and calculate any biodiversity losses due to development and gains from land conversation. The losses are measured in terms of a specified number and types of biodiversity credits. Only accredited assessors will be allowed to undertake BAM assessments.

In this sense, the Scheme is similar to the former biobanking assessment method. However, the BAM was released when the Scheme legislation commenced, and it is very complex, so the full impact of the new method of calculating offsets is unclear at this time.

It has been suggested that the offset requirements under the BAM are substantially higher for many kinds of projects than they were under the former biobanking legislation.1

The processes for determining the biodiversity credit offset requirements for a particular development, for generating biodiversity credits, and for transacting in the credit market, are very similar under the Scheme to those under the former TSC Act biobanking scheme.

Private land conservation

The Biodiversity Act introduces three tiers of private land conservation agreements:

  • (tier 1) biodiversity stewardship agreements (BSAs);
  • (tier 2) conservation agreements; and
  • (tier 3) wildlife refuge agreements.

BSAs are now the primary method for creating biodiversity credits under the Scheme, and are similar to biobanking agreements under the former TSC Act biobanking scheme.

BSAs are voluntary, in-perpetuity agreements with the NSW Environment Minister or Biodiversity Conservation Trust (Trust). They establish a biodiversity stewardship site on which biodiversity credits are generated in accordance with the BSA.

Other forms of conservation agreement have other features which are useful in different situations, but they do not generate biodiversity credits.

Biodiversity Conservation Trust

The Trust will play a key role in the Scheme. While the Environment Minister and the Trust may enter into BSAs, commentary from the NSW Office of Environment and Heritage (OEH) currently indicates that this role will be primarily performed by the Trust.

In addition to negotiating and entering into BSAs with landowners, the Trust may establish conservation and wildlife refuge agreements with landowners.

The Trust will also manage the Fund. Under the Scheme, a proponent has the option to purchase available biodiversity credits or make a payment into the Fund to meet an offset obligation. This will assist when a developer with an offset obligation cannot find the types of offsets which are needed to satisfy that obligation.

The amount of the required payment will be calculated using the Biodiversity Offsets Payment Calculator. It will be more than the estimated price of the required credits, to incentivise developers to find credits instead.

Following payment into the Fund, the Trust will have the obligation to secure the relevant biodiversity offsets in accordance with the rules of the Scheme, which generally require consistency with the offset obligations for which the payment was made.

The NSW Government has stated that the Trust will focus on strategic biodiversity offsets, so payments into the Fund may allow for invest in larger, more viable offset sites.

Biodiversity certification

Biodiversity certification allows offsetting across an entire land release area, usually at the rezoning stage, instead of offsetting on a site-by-site basis, to encourage planning authorities and landowners to avoid and minimise biodiversity impacts where possible.

Standard biodiversity certifications are available to planning authorities and landowners, with "strategic" proposals (as determined by the Environment Minister) available only to planning authorities.

Biodiversity certification proposals will be assessed under the BAM. Offsets obligations:

  • for standard proposals may be satisfied through the retirement of biodiversity credits or payment into the Fund; and
  • for strategic proposals may also be satisfied through reserving land under relevant statutory schemes, adopting development controls (ie. State infrastructure contributions) under the Planning Act or other measures as determined by the Environment Minister.

OEH has indicated that the increased flexibility for strategic proposals will allow for more flexible response to cumulative impacts and the enhancement of biodiversity conservation outcomes.

Ongoing reform

The NSW Government has acknowledged that there is more work to be done, with further details to come on transitional arrangements and other matters, including regulatory mapping for native vegetation, the Biodiversity Conservation Investment Strategy to direct investment by the Trust and new wildlife codes of practice.

Also, while Board members of the Trust have been announced, crucial details concerning the Trust's approach, strategy and overall business plan are not expected until early 2018. Accordingly, it is unclear whether the Trust will have an influential and strategic role in the initial months of the new Scheme.



1 See, for example, "'Green tax' will push up prices of new properties by $20,000", Daily Telegraph, 26 July 2017 (accessed 13 September 2017). Back to article

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.

Similar Articles
Relevancy Powered by MondaqAI
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”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions