Nature conservation

Biodiversity Reform

Transitional arrangements

Arrangements are in place to ensure a smooth transition to the Biodiversity Conservation Act 2016 and the Biodiversity Offsets Scheme.

Scenarios

I have already started an application for an approval or consent under the Environmental Planning and Assessment Act 1979  

The NSW Government has established transitional arrangements related to biodiversity assessment for the various categories of development consent or approval that are underway or have been made already. These are set out in the Biodiversity Conservation (Savings and Transitional) Regulation 2017, and are summarised below:

All development applications which were submitted before commencement will be considered under previous legislation.

Local developments 

Local developments in the following western Sydney local government areas will have 12 months from 25 August 2017 to submit an application under the previous legislation: the local government areas of Camden, City of Campbelltown, City of Fairfield, City of Hawkesbury, City of Liverpool, City of Penrith and Wollondilly.

• Local developments in all other areas will have three months from 25 August 2017 to submit a development application under the previous legislation.

Major Projects (state significant development/state significant infrastructure)

Major resources projects that have submitted a conceptual project development plan to the Division of Resources & Geoscience by 25 August 2017 will have 24 months to submit a development application under the previous legislation.

• For other major projects, development applications can be considered under the previous legislation if assessment requirements have been issued or substantial environmental assessment was undertaken before 25 August 2017 (as determined by the Secretary of the Department of Planning and Environment). These development applications must be submitted within 18 months of 25 August 2017.

These deadlines can be extended by the Department of Planning and Environment to up to 3 years from 25 August 2017 by reissuing the assessment requirements.

For further advice on how these arrangements may affect your circumstances, contact lmbc.support@environment.nsw.gov.au or 1800 931 717 in the first instance. 

I have already started preparing an application for a BioBanking statement under the Threatened Species Conservation Act 1995

Proponents who want to seek a BioBanking statement under the Threatened Species Conservation Act 1995 to accompany their development application must have submitted a complete BioBanking statement application before the Biodiversity Conservation Act 2016 commenced on 25 August 2017.

OEH will have one year from 25 August 2017 to approve the BioBanking statement application.

Any development applications that have valid Biobanking Statements are not required to prepare a biodiversity development assessment report under the Biodiversity Conservation Act 2016 if the development consent is granted within 2 years of 25 August 2017.

Read about BioBanking

I have already started preparing an application for a BioBanking agreement under the Threatened Species Conservation Act 1995

Applications for BioBanking agreements submitted before 25 August 2017 will continue to be processed under the repealed Threatened Species Conservation Act 1995.

An application for a BioBanking agreement under the repealed Threatened Species Conservation Act 1995 may be able to be lodged up to 6 months after the 25 August 2017, if OEH is satisfied that relevant information was collected before that date.

The BioBanking agreement must be finalised and signed by all parties within 18 months of 25 August 2017.

If you think you have an application that may be captured by this provision, contact the BioBanking team with any questions: biobanking@environment.nsw.gov.au

More about the BioBanking scheme.

Special case – BioBanking agreements in biocertification assessment areas

BioBanking agreements can also be submitted after 25 August for offset sites within a biocertification assessment area, even if relevant information was not collected before 25 August 2017.

The BioBanking agreement must be finalised and signed by all parties within 18 months of 25 August 2017.

I have outstanding biodiversity credits required by a condition of a planning approval to be retired under the BioBanking scheme

Clause 22 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 provides that obligations to retire credits under the Threatened Species Conservation Act 1995 (TSC Act) become obligations to retire credits under the Biodiversity Conservation Act 2016 (BC Act) (where those TSC Act credits have not been retired by 25 August 2017).

The Chief Executive of OEH will determine the ‘reasonably equivalent’ credit obligation that remains to be satisfied by the retirement of biodiversity credits.

OEH will soon publish further details about the approach for determining the biodiversity credits that are reasonably equivalent under the BC Act for existing obligations to retire credits under the TSC Act.

If you have an existing TSC Act credit obligation and you wish to acquit it shortly, please contact OEH at: lmbc.support@environment.nsw.gov.au or on 1800 931 717.

I have an outstanding offset obligation that was calculated using the Framework for Biodiversity Assessment

Clause 22 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 provides that obligations to retire credits under the Threatened Species Conservation Act 1995 (TSC Act) become obligations to retire credits under the Biodiversity Conservation Act 2016 (BC Act) (where those TSC Act credits have not been retired by 25 August 2017).

This includes obligations to retire credits imposed by a condition of a state significant development consent or state significant infrastructure approval where the project has been assessed using the Framework for Biodiversity Assessment in accordance with the NSW Biodiversity Offsets Policy for Major Projects.

The Chief Executive of OEH will determine the ‘reasonably equivalent’ credit obligation that remains to be satisfied by the retirement of biodiversity credits.

OEH will soon publish further details about the approach for determining the biodiversity credits that are reasonably equivalent under the BC Act for existing obligations to retire credits under the TSC Act.

If you have an existing TSC Act credit obligation and you wish to acquit it shortly, please contact OEH at: lmbc.support@environment.nsw.gov.au or on 1800 931 717.

I own unsold biodiversity credits generated by a BioBanking agreement

Existing biodiversity credits created under the TSC Act remain valid under the BC Act.

OEH will publish further details about conversion arrangements for TSC Act biodiversity credits soon.

In the meantime, please contact OEH with any inquiries at lmbc.support@environment.nsw.gov.au or on 1800 931 717.

I am the holder of biodiversity credits bought from the public register

Existing biodiversity credits created under the TSC Act remain valid under the BC Act. 

OEH will publish further details about conversion arrangements for TSC Act biodiversity credits soon.

In the meantime, please contact OEH with any inquiries at: lmbc.support@environment.nsw.gov.au or on 1800 931 717.

I own land that has an existing BioBanking agreement in place 

Existing BioBanking agreements will remain in place and will now be managed under the new legislation as it is a Biodiversity Stewardship Agreement.  The Biodiversity Conservation Trust will take over the management of BioBanking agreements, including administration of annual reports, application for variations and annual payments.

I have a Nature Conservation Trust agreement or an application underway under the Nature Conservation Trust Act 2001

All Nature Conservation Trust agreements will remain in place.

Applications for Nature Conservation Trust agreements that were in preparation prior to 25 August 2017 can be approved under the Nature Conservation Trust Act 2001.

The Biodiversity Conservation Trust will take over the management of these agreements and applications.

I have a conservation agreement or wildlife refuge in place, or an application underway under the National Parks and Wildlife Act 1974

All existing conservation agreements or wildlife refuges under the National Parks and Wildlife Act 1974 will remain in place.

Applications for conservation agreements under the National Parks and Wildlife Act 1974 that were in preparation prior to 25 August 2017 can be approved under the old legislation.

After 25 August 2017 wildlife refuge agreements must be signed under the new Biodiversity Conservation Act

The Biodiversity Conservation Trust will take over the management of these agreements and applications.

I have an ‘old’ private land conservation agreement on my land and am interested in ‘upgrading’ to a biodiversity stewardship agreement under the Biodiversity Conservation Act 2016

Landholders will need to demonstrate that they can meet the eligibility criteria included in the Biodiversity Conservation Regulation 2017. The Biodiversity Assessment Method may reduce the number of credits that can be generated in these cases, to reflect the fact that the land was already under an existing conservation obligation.

The Biodiversity Conservation Trust is responsible for administering potential ‘upgrades’. Contact the Trust  for more information.

I have an application underway for biocertification under the Threatened Species Conservation Act 1995

Existing biodiversity certified areas remain valid once the Threatened Species Conservation Act 1995 is repealed and existing conservation obligations must be complied with.

For existing biodiversity certification applications that have already been submitted will continue to be processed under the Threatened Species Conservation Act 1995.

Within three months of 25 August 2017 the Minister for the Environment will identify, through a notice in the NSW Gazette, biodiversity certification proposals which can be submitted after 25 August 2017 and considered under the Threatened Species Conservation Act 1995. The deadline for submitting these applications will be set out in the order.  

 For information about the framework for biodiversity certification under the TSC Act

Page last updated: 21 September 2017