New Biodiversity Reforms in NSW - a step toward net positive outcomes

On 22 November 2024, the NSW Parliament passed an amendment to the Biodiversity Conservation Act 2016 (NSW) (the Act).

This reform is in line with the Government’s NSW Plan for Nature, which was a response to an independent statutory review of the Biodiversity Conservation Act 2016 (led by Dr Ken Henry and published in August 2023).

A key finding of the 2023 statutory review was that the operative provisions of the Act were “incapable” of supporting the legislation’s objectives which has resulted in the declining state of nature in NSW.

This is not the first time issues with the operation of the Act have been raised. The independent statutory review followed a parliamentary inquiry into the Act in 2022. A key finding in both reports was the effectiveness of the operation of the Biodiversity Offsets Scheme.  

The Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Bill 2024 (the Bill), reforms the biodiversity offsets scheme by providing that it will transition to net positive biodiversity outcomes.

The Bill forms part of the Government’s NSW Plan for Nature and its purpose is to ensure that changes be made to ensure biodiversity offsetting is genuinely used as a last resort.

The Bill aims to deliver the following outcomes:

1. Transition to delivering net positive biodiversity outcomes;

2. It will allow for circumstances where developers can pay into the Biodiversity Conservation Fund to be reduced, and when the fund is used, it aims to promote quicker investment in impacted species and ecosystems;

3. Increase transparency through new public registers; and

4. It will allow for local development to be exempt from the scheme in exceptional circumstances and for the regulations to prescribe circumstances where burden on low-impact local development can be reduced, particularly in regional areas. 

As a consequence of the Bill, the Biodiversity Conservation Regulation 2017 will also need to be amended to implement and to deliver other reforms to be in line with the commitments in the NSW Plan for Nature. Those changes will include amending the scheme entry threshold so that low impact local development is not captured by the scheme, and will also remove the option for major mining proponents to meet a credit obligation through a commitment to ecological mine site rehabilitation.

To achieve and deliver these outcomes, the amendment requires that the Minister draft and adopt a strategy for the transitioning of the scheme. So until regulations are implemented (not likely to be done until mid 2025), applications which trigger the Biodiversity Offsets Scheme will continue to be assessed and determined under the current regime.

We will watch this space closely and report further once parliament passes these proposed amendments to the Act and the Regulation, including the possible ramifications for future applications.

Authors: Laura Raffaele & Maja Podinic