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.

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.

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.

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.

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 Councils 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.

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 EP&A Regulation 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 a copy of the application was received 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 LLS?

OEH will be responsible for compliance matters relating to clearing activities regulated by LLS.  

If Council receives a call about suspected illegal clearing and has established that the clearing is not associated with a development approval under Part 4, an activity under Part 5 or a major project, the complaint should be directed to the Environment Line 131555. 

The Biodiversity Conservation Trust and Biodiversity Stewardship Agreements

Is there a minimum area for Biodiversity Stewardship Agreements?

No.  

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 regional support officers be in place and where will they be located?

Negotiations around hosting regional support officers are underway. 

OEH has mainly approached Regional Organisations of Councils and invited them to partner with us in hosting an officer or identifying a host organisation within their member councils.  

We have defined regions to ensure all councils are adequately supported. We have also considered the workloads of the new officers.  

Our intention is that the officers will have good connections to existing OEH regional offices.  

Announcements will be made in coming weeks.

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

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

It is expected that more training places will be available later in the year.  

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

Other questions

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: 18 September 2017