Australia: Biodiversity conservation reforms in NSW – a closer look at biodiversity stewardship agreements

Last Updated: 12 July 2018
Article by Breellen Warry and Georgia Appleby

Most Read Contributor in Australia, October 2018

The biodiversity conservation reforms introduced sweeping changes to the NSW planning system and have significantly altered the way in which biodiversity is assessed, managed and offset. The reform package introduced a raft of new statutory instruments, including:

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

This new legislation had the effect of repealing and replacing previous biodiversity legislation, including the Threatened Species Conservation Act 1995, Nature Conservation Trust Act 2001, the Native Vegetation Act 2003, and parts of the National Parks and Wildlife Act 1974 and the Fisheries Management Act 1994.

While the reforms commenced back on 25 August 2017, the effects of these changes are only now being felt, particularly having regard to extensive savings and transitional provisions.

In the recent decision in Kate Singleton Pty Ltd ACN 106 774 001 and S J Connelly CCP Pty Ltd ACN 125 970 783 (trading as Planners North ABN 56 291 496 553) v Ballina Shire Council [2018] NSWLEC 1306 (Planners North), the Land and Environment Court (Court) rejected a council's attempt to impose a condition of consent requiring a biodiversity stewardship agreement (BSA) to be entered into in relation to land that was the subject of a development application.

The case raises a number of important matters that should be considered, particularly when navigating this transitional phase of the reforms and also when considering the appropriateness of any requirements for permanent conservation measures during the DA process.

Requirement to enter into a BSA

The main point of contention at the hearing was Council's proposed condition which required that a BSA be entered into in relation to each of three lots within the proposed residential development.

The applicant argued that the obligation to enter into a BSA was unreasonable, and that the condition should be deleted, because:

  • the BC Act did not apply, as the application was a "pending or interim planning application" under the provisions of the Savings Regulation and was thus governed by the former planning provisions
  • there is no requirement for an offset under the applicable DCP, LEP or the former Threatened Species Conservation Act 1995 (TSC Act)
  • the condition was "unreasonable, unprecedented, unwarranted and problematic".

The respondent council submitted that the condition should be retained because:

  • it provided the "best practice" to protect the three lots in question
  • even if the BC Act didn't apply, the TSC Act provided the opportunity to offset impacts via a Biobanking Agreement
  • the condition could be reasonably complied with and provided certainty for the future protection of the lots.

The Court upheld the appeal and rejected the proposed condition. Importantly, it noted that the appeal had been lodged prior to the commencement of the BC Act on 25 August 2017, and thus under the Savings Regulation the BC Act did not apply. The Court also accepted that a BSA is a voluntary mechanism, and the applicant could not be required to enter into one in order to comply with the DCP or the TSC Act. Moreover, there was no certainty that the Office of Environment & Heritage would agree to enter into a BSA on the site. Without greater certainty, the Court considered that the inclusion of such a condition would not be appropriate in any approval.

The case raises a number of important matters, including a consideration of what is a BSA and the requirements under the BC Act governing a BSA.

The Biodiversity Offset Scheme and BSAs

The Biodiversity Offset Scheme

One of the key aspects of the BC Act is the establishment of the Biodiversity Offsets Scheme (BOS). Where a proposed development or activity is likely to significantly affect threatened species, the BC Act provides that the BOS will apply.

Put simply, the BOS is a system for offsetting the impacts associated with development or clearing through the purchase and retirement of 'biodiversity credits'. The BC Act sets out when the BOS applies and the assessment requirements for various developments. The credits are generated by people who have entered into BSA establishing a biodiversity stewardship site (stewardship site) on their land.

What are BSAs?

Similar to a biobanking agreement under the previous TSC Act, a BSA is an agreement between a landholder and the Minister for Environment, whereby the landholder must carry out certain 'management actions' at a site which are funded by payments to a Biodiversity Stewardship Payments Fund.

As a result of undertaking these management actions, landholders are able to generate and sell credits to developers who are required to purchase and retire credits to offset the impact of their development under the BOS. These credits essentially represent the improvement to biodiversity resulting from the protection and management of the site.

However, a BSA cannot be entered into with respect to any land, and there are requirements that must be satisfied before a stewardship site can be established on this land, as set out below. Furthermore, the costs and implications of entering into a BSA are not negligible and, therefore, a landowner should seek detailed advice prior to deciding to enter into a BSA.

Eligibility criteria

Section 5.5 of the BC Act states that:

  1. The Minister may enter into an agreement relating to land with all the owners of the land for the purpose of establishing a biodiversity stewardship site (a biodiversity stewardship agreement).
  2. A biodiversity stewardship agreement may designate any eligible land to which the agreement relates to be a biodiversity stewardship site for the purposes of this Act.
  3. The Minister must consult with the Minister for Planning and the Minister for Industry, Resources and Energy before entering into any biodiversity stewardship agreement.

This section of the BC Act is extracted to emphasise that BSAs are voluntary agreements which may only be entered into with respect to eligible land.

In addition, a site cannot be a stewardship site if the Minister is of the opinion that, for example:

  1. the proposed used of the land is inconsistent with biodiversity conservation;
  2. the proposed use will prevent relevant management actions from being carried out; or
  3. the owner of the land is already under a legal obligation to carry out biodiversity conservation measures.

Ministerial discretion

Section 5.9 of the BC Act outlines certain requirements which must be satisfied before the Minister is permitted to enter into a BSA. This includes, for example, that all landowners must be party to the agreement, all mortgagees and tenants/lessees must consent to the agreement.

The Minister may also decline to enter into a BSA for a range of reasons, including where:

  • a landowner is not a 'fit and proper person'
  • an application is unclear
  • a contribution/fee is unpaid
  • there is a failure to provide additional information
  • an application is not materially different to a previously rejected application
  • the Biodiversity Stewardship Site Assessment report (which must accompany an application to enter into a BSA) has been improperly prepared; and/or
  • on any other ground the Minister considers sufficient.

Accordingly, as the Court highlighted in Planners North, numerous factors need to be considered before a condition requiring a BSA to be entered into is imposed.

For example:

  • if the BC Act does not apply because of applicable savings and transitional provisions, then it is not appropriate to seek to impose obligations under that Act
  • if the BC Act does apply, developers and consent authorities need to understand whether or not the BC Act is triggered and if so, the offset requirements that apply under the BC Act. These offset requirements will be governed by the BC Act and the BOS, being, generally speaking, an obligation to retire credits.

While BSAs might be used as a form of a permanent conservation measure, detailed advice should be first obtained, including a consideration of whether a BSA can in fact be entered into. Other ways of securing permanent conservation outcomes might be more appropriate, depending on the circumstances.

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.

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.

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
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