Biodiversity reforms - The effects on development and conservation

The Biodiversity Conservation Act 2016 (the Biodiversity Act), Local Land Services Amendment Act 2016 (The LLSA Act) and the Biodiversity Conservation Regulations 2017 (the Regulations) commenced on 25 August 2017 (biodiversity reforms).

These biodiversity reforms provide a framework for addressing impacts on biodiversity and clearing through development, and establish a method of avoiding, minimising and offsetting impacts.

The biodiversity reforms are complex and represent significant changes to the way that biodiversity impacts are considered in assessing and approving a proposed development in NSW.

The introduction of the Biodiversity Assessment Method (BAM) largely replaces existing threatened species assessments and biodiversity offsetting methods, and involves measuring loss or gain in native vegetation and habitat loss as ‘biodiversity credits’.

A Biodiversity Development Assessment Report (BDAR) prepared by an accredited assessor identifying how the applicant proposes to avoid and minimise impacts, any potential serious and irreversible impacts and offset obligations (expressed in biodiversity credits), may now be required to be submitted in support of a development, major project proposal or clearing application.

Prior to lodging a development application, a developer must determine whether a BDAR is in fact required to be submitted to a consent authority. The threshold for a BDAR for applications made under Part 4 of the Environmental Planning and Assessment Act 1979 is either satisfying the ‘five part significance test’, exceeding minimum area thresholds in the relevant LEP or being cleared as nominated on a Sensitive Biodiversity Values Land Map. For State Significant Development & Infrastructure, a BDAR is only required if the ‘five part significance test’ is satisfied.

The ‘five part significance test’ includes consideration of the following:

1. Effects on the lifecycle of the threatened species;

2. Adverse effects on the extent or composition of ecological communities;

3. Extent to which the habitat is to be removed, its fragmentation/isolation and its importance in the locality;

4. Adverse effects on declared areas of outstanding biodiversity value (critical habitat); and

5. Key threatening processes.

Perhaps the most important change is the calculation of a developer’s offset obligations under the Biodiversity Offset Scheme. The offset rules allow developers to meet their offset obligations in a number of ways including:

• retiring of credits;

• funding a biodiversity conservation action;

• delivering mine site ecological rehabilitation; or

• making a payment to the Biodiversity Conservation Trust. 

Alternatively, a developer could use a variation rule (as detailed in the Regulations) to offset using a broader suite of biodiversity.

It is important to note that the application of the biodiversity reforms in the local government areas of Camden, Campbelltown, Fairfield, Hawkesbury, Liverpool, Penrith and Wollondilly have been deferred for 12 months. Further, Sydney Region Growth Centres as nominated under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, are exempt from the biodiversity reforms, and will continue with the existing certification.

In Conclusion

The reforms are complex and controversial and will take some bedding in before they are widely understood. If you would like more information on the new biodiversity reforms, feel free to call one of our team members.

Authors: Dennis Loether and Laura Farrugia