Nature conservation

Biodiversity Reform

Biodiversity reform: your questions answered

We have identified some common questions asked by Councils about the biodiversity reforms and our answers are below.

If your questions are not answered here contact the Land Management Biodiversity Conservation support hotline on 1800 931 717 or lmbc.support@environment.nsw.gov.au.

Transitional arrangements

Can consent authorities and/or applicants 'opt in' to assessment under the Biodiversity Conservation Act 2016 in interim designated areas?

‘Opt in' by agreement provisions, set out in clause 28(2) of the Biodiversity Conservation Regulation (Savings and Transitional) 2017, only apply to Part 4 development in limited circumstances.

These include when an Environmental Impact Statement is to be submitted in connection with the application and either assessment requirements have been received or the Secretary of the Department of Planning and Environment determines in writing that the proponent has undertaken substantial environmental assessment. Applicants and consent authorities can also agree to ‘opt in’ if a Species Impact Statement is to be prepared in connection with the application and assessment requirements have been issued. 

Time limits for the submission of the application apply.

The Biodiversity Offset Scheme threshold

How is the area of clearing calculated for the purposes of deciding whether the Biodiversity Offset Scheme threshold is triggered?

In areas regulated by the LLS Act, the Biodiversity Offset Scheme Entry Tool can be used to simultaneously determine whether or not an application triggers either the Biodiversity Values Map or the area clearing threshold.  The Biodiversity Offset Scheme Entry Tool User Manual explains how to determine the footprint of clearing.  

In areas regulated by the Vegetation SEPP, vegetation maps are not yet available. The User Manual provides guidance for how to calculate clearing for the purposes of determining whether the Biodiversity Offset Scheme is triggered.  In the first instance, it is recommended that you contact your Council for suitable local mapping.

How is the area of clearing calculated for the purposes of determining whether the Biodiversity Offset Scheme threshold is triggered in the case of subdivision development applications?

When applying the area clearing threshold, subdivision development applications need to consider the clearing of native vegetation that, in the opinion of the consent authority, is required or likely to be required for the purposes for which the land is to be subdivided. 

Guidance for calculating the area of clearing for the purposes of determining whether the Biodiversity Offset Scheme is triggered is provided in the Biodiversity Offset Scheme Entry Tool User Manual.

When the actual lot size is smaller than the Minimum Lot Size, which is used to calculate whether the area clearing threshold has been triggered?

The Minimum Lot Size is used for the calculation. Note that the threshold determines the pathway for approval and is not itself an approval to clear.  

When a lot covers more than one zone and has different minimum lot sizes, which is used to calculate whether the area clearing threshold has been triggered?

The smaller of the minimum lot sizes is used to calculate whether the area clearing threshold has been triggered.

When there is no minimum lot size, what is the clearing threshold based on?

Where there is no minimum lot size the clearing threshold will be based on the smallest actual lot size associated with the development.

How is clause 7.3(4) of the Biodiversity Conservation Regulation 2017 (BC Regulation) applied in determining whether the Biodiversity Offset Scheme threshold is triggered?

Clause 7.3(4) of the BC Regulation provides that a proposed development (other than subdivision) does not exceed the Biodiversity Offset Scheme threshold if carried out on a lot that was the result of a subdivision carried out before the commencement of the Act within land zoned R1 to R4, RU5, B1 to B8 or IN1 to IN3.

This clause applies in circumstances where subdivision approval has been granted on land within the nominated zones and the purpose of the approved subdivision has not yet been realised.

Councils will confirm if a subdivision approval has been granted in an appropriate zone and if the purpose of the subdivision has not yet been realised. Council will also confirm that a proposed development is consistent with the purpose of the approved and unrealised subdivision.

Clause 7.3(4) is not to be applied when determining whether the Biodiversity Offset Scheme applies under the Vegetation SEPP (Clause 4(1)).

Is the Asset Protection Zone included in the area of clearing for the purposes of deciding whether the Biodiversity Offset Scheme threshold is triggered?

The area of impact needs to be calculated for the whole development including asset protection zones required by the Rural Fire Service. The Rural Fire Service has guidelines on determining whether an asset protection zone is needed, what size is required, and what approvals might be required. Please see the Standards for Asset Protection Zones.

How are cumulative impacts considered in the threshold?

The biodiversity offset scheme integrates with the assessment and approval framework under the EP&A Act. As is currently the case, developers will identify the activity to be approved in a development application. Each application will continue to be considered on its merits and the threshold will be applied independently for each application.

The BC Act and the Biodiversity Offset Scheme do not limit Council’s ability to consider the biodiversity impacts of any development application. Council retains the ability to refuse development applications on biodiversity grounds. Contribution to cumulative impacts across the landscape may be considered in this context.

On an annual basis, OEH collects and analyses spatial data for the purposes of monitoring vegetation clearing. This information could be made available to Councils for monitoring at the LGA level if desired.

Does the Biodiversity Assessment Method (BAM) apply to developments on Category 1 land (as per Part 5A LLS Act)?

In the context of a development consent, impacted vegetation that is mapped as Category 1 land is not part of the calculation of the area of clearing for determining whether the Biodiversity Offset Scheme threshold is triggered.

In Native Vegetation Regulatory Map areas, the map is built in to the Biodiversity Offset Scheme Entry Test tool (BOSET) for the purposes of defining vegetation occurrence.  Within the area of impact nominated by the user, the BOSET tool is capable of determining whether land is regulated or unregulated. This information is reflected in calculations and the resulting advice with respect to assessment and approval requirements.

If the Biodiversity Offset Scheme applies to the proposal, the impact on native vegetation and habitat within the Category 1 area does not need to be assessed using the BAM.  However, impacts on additional biodiversity values prescribed in the regulation do need to be assessed in the Category 1 area.

Requirements for assessment of impacts on prescribed biodiversity values are set out in the BAM.

 

When and how will Councils be able to contribute to the Biodiversity Values Map?

The first release of the Biodiversity Values Map doesn’t include Council data.  However, the map will be regularly updated.

When in place, Regional Support Officers will work with Councils to discover data that may be appropriate for inclusion and help to initiate the process of seeking approval through OEH.  

Guidance on criteria, data standards and process for including Council data will be made available soon.

How are biodiversity impacts assessed if the Biodiversity Offset Scheme does not apply?

A test of significance should have been prepared in order to determine that the Biodiversity Offset Scheme does not apply. This test will form part of the documentation that accompanies a development application. The development application will be assessed in accordance with standard procedures under s79c of the Environmental Planning and Assessment Act 1979.

The development application should also be accompanied by evidence that the Biodiversity Offset Scheme thresholds have not been triggered.

Does the Biodiversity Assessment Method (BAM) apply to developments on Category 1 land (as per Part 5A LLS Act)?

In the context of a development consent, impacted vegetation that is mapped as Category 1 land is not part of the calculation of the area of clearing for determining whether the Biodiversity Offset Scheme threshold is triggered.  

If the Biodiversity Offset Scheme applies to the proposal, the impact on native vegetation and habitat within the Category 1 area does not need to be assessed using the BAM.  However, impacts on additional biodiversity values prescribed in the regulation do need to be assessed in the Category 1 area.

Requirements for assessment of impacts on prescribed biodiversity values are set out in the BAM.

Are impacts on the Saltmarsh EEC listed under the TSC Act assessed by the Biodiversity Assessment Method (BAM)?

No.  

Impacts on all vegetation types in the saline wetlands vegetation formation will be assessed under the Fisheries Management Act.  This includes the Coastal Saltmarsh in the NSW North Coast, Sydney Basin and South East Corner bioregions Endangered Ecological Community.

Assessment pathway

How does 'opting in' to the BOS work for Part 5 developments?

Under the Biodiversity Conservation Act 2016 (BC Act) participation in the Biodiversity Offset Scheme is optional for Part 5 activities.

If an activity is likely to significantly affect threatened species, a species impact statement or, if the proponent so chooses, a biodiversity development assessment report is to accompany the environmental assessment of the activity. A proponent ‘opts in’ to the biodiversity offset scheme by electing to prepare a biodiversity development assessment report.  Where a biodiversity development assessment report is prepared, concurrence is not required from the Chief Executive of OEH.

A Part 5 activity is likely to significantly affect threatened species if:

  • it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3 of the BC Act
  • it is carried out in a declared area of outstanding biodiversity value.

Note that the biodiversity offset scheme threshold does not apply in a Part 5 context.

Unless the activity is taking place within an area of outstanding biodiversity value (in which case the activity is automatically considered likely to significantly affect threatened species), the process would be that a test of significance is prepared as per s7.3 of the BC Act. If a significant impact is likely the proponent may choose to prepare a biodiversity development assessment report and calculate a credit obligation using the Biodiversity Assessment Method rather than prepare a species impact statement and seek concurrence. If opting in, the biodiversity development assessment report would form part of the environmental impact assessment for the activity.

There is no requirement to apply the biodiversity assessment method should a proponent not elect to prepare a biodiversity development assessment report.

Can Council require a development application to be assessed under the Biodiversity Offset Scheme where unlawful clearing has been undertaken and reduced the footprint for the purposes of calculating the area clearing threshold?

No.

The unlawful clearing should be dealt with as a compliance matter.

How are biodiversity impacts assessed if the Biodiversity Offset Scheme does not apply?

A test of significance should have been prepared in order to determine that the Biodiversity Offset Scheme does not apply. This test will form part of the documentation that accompanies a development application. The development application will be assessed in accordance with standard procedures under s79c of the Environmental Planning and Assessment Act 1979.

The development application should also be accompanied by evidence that the Biodiversity Offset Scheme thresholds have not been triggered.

Are impacts on the Saltmarsh EEC assessed under the Biodiversity Conservation Act 2016 and the Biodiversity Assessment Method (BAM)?

Yes. If vegetation clearing will impact on the Saltmarsh Endangered Ecological Community (EEC) and a biodiversity development assessment report is being prepared, the impacts will be assessed using the Biodiversity Assessment Method.

Any vegetation that is a part of a threatened ecological community is protected by offences relating to threatened ecological communities in the BC Act. If removal of vegetation will impact on Coastal Saltmarsh EEC, an authority to remove vegetation would be required. Division 2 of the BC Act outlines the forms of authority that provide a defence to offences.

Decision making

At what geographical scale are serious and irreversible impacts decisions made?

Decisions about serious and irreversible impacts are made in relation to the statewide occurrence of the threatened entity in accordance with the principles outlined in the BC Regulation and the criteria published in the Serious and Irreversible Impacts Guidance.

Can a consent authority identify serious and irreversible impacts additional to those listed in the Serious and Irreversible Impacts Guidance during the course of assessing an application?

OEH has developed the list of potential serious and irreversible impacts by a thorough review of all threatened entities.

However, the consent authority still has discretion to identify serious and irreversible impacts on entities that are not on the list. Any decision that an impact will be serious and irreversible must be made in accordance with the principles set out in the BC Regulation.

If a Council suspects an omission in the list of potential serious and irreversible impacts, it should contact OEH.

Where does the power for a consent authority to enforce the avoid, minimise, offset hierarchy reside?

The consent authority’s decision to approve or refuse a development is still made in accordance with s79C of the Environmental Planning and Assessment Act 1979.  Site suitability is a relevant consideration.  Efforts to avoid and minimise impacts may be considered in this context. 

The Biodiversity Assessment Method (Ch. 8) requires that proponents document their efforts in the Biodiversity Development Assessment Report, to ensure that this information is before the consent authority. 

As is currently the case, the consent authority will weigh up environmental, social and economic impacts in the decision-making process. 

The Biodiversity Conservation Act 2016 (s 7.13(6)) allows the consent authority discretion over what measures are required in relation to avoiding and minimising impacts. 

Can a consent authority refuse a development application on biodiversity grounds when the Biodiversity Offset Scheme applies?

A consent authority’s decision to approve or refuse a development is still made in accordance with s79C of the Environmental Planning and Assessment Act 1979

The Biodiversity Conservation Act 2016 (s 7.13(6)) and the Biodiversity Offset Scheme does not limit the ability of the consent authority to require additional measures in relation to avoiding and minimising biodiversity impacts or to refuse an application on the basis of those impacts.

When is concurrence from OEH required?

Concurrence is only required from OEH when a consent authority for a Part 4 development decides to reduce the number of credits to be retired relative to the amount specified in the Biodiversity Development Assessment Report.  

The Environmental Planning and Assessment Regulation 2000 outlines timeframes associated with seeking concurrence. If a consent authority receives a development application which seeks a reduction in the offset credit requirement, the consent authority must inform OEH within 10 days.

Within 30 days of receiving the development application the consent authority must decide whether to approve a reduction in the credit requirement, and must inform OEH of that decision and the proposed reasons for the decision.  

OEH has 50 days from when the application was lodged to give written notice of its concurrence decision. The timeframe for concurrence has been extended from the current 40 days which applies in relation to other concurrences under the EP&A Regulation and which previously applied to biodiversity assessment.  

Compliance

Who is responsible for compliance of vegetation clearing activities regulated by Part 5A of the Local Land Services Act 2013?

OEH is responsible for compliance matters relating to clearing activities regulated by Part 5A of the Local Land Services Act 2013.  

If Council receives a call about suspected illegal clearing on land regulated by Part 5A of the Local Land Services Act 2013, Council should first determine if the clearing is associated with a development approval under Part 4 of the Environmental Planning and Assessment Act 1979 (EP&A Act), an activity under Part 5 of the EP&A Act or a major project.

If the clearing has occurred in association with a planning approval, the complaint should be directed to the consent or determining authority. If the clearing has not occurred in association with a planning approval, the complaint should be directed to the OEH Environment Line on 131 555.

Who is responsible for compliance of vegetation clearing activities outside of Part 5A of the Local Land Services Act 2013?

Clearing associated with an approved development that is inconsistent with the approval is a compliance matter under the Environmental Planning and Assessment Act 1979. Council will be responsible for investigating and seeking redress under this Act as a first response.

If Council also suspects the clearing constitutes an offence against the BC Act, the case may be referred to Environment Line 131555.

Clearing that requires authorisation under Council’s DCP and does not have authorisation is a compliance matter under the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017. Clearing that requires approval by the Native Vegetation Panel in urban areas and does not have approval is also a compliance matter under the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

In practice, it is envisaged that Council will bring proceedings to remedy or restrain a bread of the Vegetation SEPP however the LLS may also do so if LLS determines that it should have this function in relation to approvals under the Native Vegetation Panel.

The Department of Planning and Environment is investigating amendments that will enable Councils to issue Penalty Notices for unauthorised clearing.

Can Councils issue Penalty Notices for unauthorised clearing?

Presently the only mechanism for enforcement of offences relating the Vegetation SEPP available to Council is bringing proceedings in the Land and Environment Court.  However, the Department of Planning and Environment is investigating amendments that will enable Councils to issue Penalty Notices for unauthorised clearing.

When a proponent proposes to fund a biodiversity action as part of their offset, how is compliance demonstrated?

To fund a biodiversity action, the proponent must confirm with OEH that the action has not been completed.  Council will be required to identify the biodiversity action and the credit obligation it relates to in conditions of consent.

Funding for the biodiversity action is to be paid to OEH. The proponent demonstrates compliance by providing evidence of this payment to Council.

The Biodiversity Conservation Trust and Biodiversity Stewardship Agreements

Is there a minimum area for Biodiversity Stewardship Agreements?

The smallest biobanking site is approximately 1.5 ha. In practice though, management costs may influence the feasibility of establishing a small Biodiversity Stewardship Agreement site as the edge effects on a small patch may be more expensive to manage than edge effects for a larger patch.

Management costs will depend on what values are being protected and the management that they require.

Will Councils be advised when an application for a Biodiversity Stewardship Agreement is received for their LGA, to be able to confirm that the land is not already the subject of an offset requirement?

Biodiversity Stewardship Site applications will be managed by the Biodiversity Conservation Trust (BCT). OEH is working with the BCT as business systems and processes are established to explore notification options. 

Will Councils be notified when a Biodiversity Stewardship Agreement within their local government area is made?

Biodiversity Stewardship Site applications will be managed by the Biodiversity Conservation Trust (BCT). OEH is working with the BCT as business systems and processes are established to explore notification options.

Can public land that is already managed for conservation be placed under a Biodiversity Stewardship Agreement?

Yes.

Land that is already under legal obligation to carry out biodiversity conservation measures is not eligible to become a Biodiversity Stewardship Site unless the obligation was not created for biodiversity offset purposes.  A government or statutory agency that imposed the legal obligation or administers the provisions can advise in writing that the legal obligation was not created for biodiversity offset purposes. 

Management of public land that is classified as a Natural Area under the Local Government Act 1993 does not fall within the definition of an offset arrangement.  However, being subject to ongoing biodiversity management measures, the amount of gain attributed to the establishment of a Biodiversity Stewardship Site may be reduced. Therefore, the Biodiversity Stewardship Site may generate fewer credits than unmanaged land.

Support for local government

When will local government support officers be in place?

Four local government support officers are in place. Visit the local government resources page for contact details for officers in these areas:

  • Hunter and Central Coast
  • North Coast
  • New England North West and northern Far West
  • Riverina and Murray and Southern Far West.

Introductions will be made in the coming weeks.

Recruitment for an additional four local government support officers is underway.

Announcements will be mad as recruitment is finalised. Visit the local government resources page for contact details for support in the meantime.

Will more sponsored training positions for local government staff become available?

OEH will be continually reviewing training places as the training rolls out. 

Opportunities for additional training places will be advertised on the biodiversity local government resources page of the OEH website.

 

Other questions

Who funds local council rate relief for conservation agreements?

Land owners who enter into conservation agreements under the Biodiversity Conservation Act 2016 will also be eligible for council rate relief under certain circumstances. Similar arrangements exist for conservation agreements entered into under previous legislation. Note this does not apply to biodiversity stewardship agreements.

The rate relief provisions do not reduce council’s overall rate entitlement.  Councils may recover the loss of revenue associated with rate relief by redistribution across the local government area.

Are there circumstances where a Biodiversity Conservation Licence (previously referred to as s91 licences or wildlife licences) may be required in relation to clearing of native vegetation?

Yes.  There are some cases where clearing of native vegetation is not afforded protection against the offences in the Biodiversity Conservation Act 2016.  A Biodiversity Conservation Licence is an alternative way of receiving authorisation for the clearing.

This applies to clearing of threatened species, ecological communities or protected plants that does not require authorisation under the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, including:

  • Clearing of threatened species, ecological communities and protected vegetation that is a risk to life and property
  • Clearing of threatened species, ecological communities and protected vegetation under the transitional allowable activities in R5 and E zones
  • Where a DCP does not require a permit for the clearing activity

Where damage to the habitat of a threatened species or ecological community, or harm to an animal, is not or cannot be authorised under the Vegetation SEPP, a biodiversity conservation licence or another defence will need to be obtained to lawfully undertake these actions.

Biodiversity conservation licences are issued by OEH and further information is available on our Licence to harm a threatened species or ecological community webpage.

For more detail on the relationship between DCPs and Biodiversity Conservation Licences, read about Development Control Plans and the Vegetation SEPP.

Do development applications that would previously have also required development consent under the Native Vegetation Act 2007 still require dual consent with the repeal of this Act?

No.

With the repeal of the Native Vegetation Act 2007, dual consent is no longer a feature of the biodiversity assessment and approvals framework.  Under Section 60O(a) of the Local Land Services Act 2003, a Part 4 consent under the Environmental Planning and Assessment Act 1979 is a defence against clearing offences.  Development applications being processed under former planning provisions will therefore not require any additional authorisations.

Can `created' hollows be considered artificial hollows on an offset site?

Yes, created hollows can be considered as artificial hollows on an offset site.

Can Councils propose biodiversity actions?

Yes.  

Councils can propose biodiversity actions to OEH.  

OEH would consider whether or not to list that action within the ancillary rules document.

Page last updated: 17 April 2018