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 already been made. These are set out in the Biodiversity Conservation (Savings and Transitional) Regulation 2017, and are summarised below:

  • Approvals and consents issued before commencement of the new legislation on 25 August 2017 remain valid.
  • Development applications (including for modifications) which were made before commencement will be considered under previous legislation.
  • Some applications can be considered under the Biodiversity Conservation Act 2016 (BC Act) if the applicant and the planning approval body agree in writing.

Local developments 

From 25 February 2018 in most local government areas, any new application for development consent or modification to an approved development under Part 4 of the Environmental Planning & Assessment Act 1979 (not including state significant development) will be subject to the biodiversity assessment requirements of the BC Act, and transitional arrangements no longer apply.

Local developments in the following western Sydney local government areas will have 15 months from 25 August 2017 to submit an application under the previous legislation, that is, until 24 November 2018. These provisions apply to the local government areas of Camden, City of Campbelltown, City of Fairfield, City of Hawkesbury, City of Liverpool, City of Penrith and Wollondilly.

The Minister for the Environment has declared seven additional local government areas, and part of one local government area, as Interim Designated Areas. The relevant Councils are:

  • in the Lower Hunter, Cessnock, Newcastle, Port Stephens, Lake Macquarie and Maitland
  • Central Coast
  • Coffs Harbour
  • the West Dapto Urban Release Area. 

Local developments in the Cessnock, Newcastle, Port Stephens, Lake Macquarie, Maitland, Central Coast and Coffs Harbour local government areas will have until 24 November 2018 to submit an application under the previous legislation. Local developments in the West Dapto Urban Release Area of Wollongong local government area will also have until 24 November 2018 to submit an application under the previous legislation. It is intended that the draft biocertification project prepared under the previous legislation, and carried forward through the Biodiversity Conservation (Savings and Transition) Regulation 2017, will be finalised within this timeframe. 

For local developments where a Species Impact Statement is required to be submitted, and the requirements for the preparation of the statement were issued before 25 August 2017, the application must be submitted by 24 August 2018.

Major projects (state significant development/state significant infrastructure)

Mining projects that had submitted a conceptual project development plan to the Division of Resources & Geoscience before 25 August 2017 will have until 24 August 2019 to submit a development application under the previous legislation. The Secretary of the Department of Planning and Environment must identify these projects in writing by 25 November 2017.

Other major project development applications (or modification applications) can be considered under the previous legislation if:

  • substantial environmental assessment was undertaken before 25 August 2017 (as determined in writing by the Secretary of the Department of Planning and Environment) and the application is made within 18 months of the Secretary’s determination, or
  • environmental assessment requirements were issued before 25 August 2017 and the application is made before 25 February 2019. If the environmental assessment requirements are reissued, the application must instead be made within 18 months of the reissue, but no later than 24 August 2020.

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. 

Part 5 activities

Part 5 authorities can continue with their own Part 5 activities under the previous legislation if they had consulted with the Environment Minister or been granted concurrence by the Office of Environment and Heritage (OEH) Chief Executive before 25 August 2017.

Where a Part 5 authority had started assessment of their Part 5 activity before 25 August 2017, but has not consulted with the Environment Minister or been granted concurrence, they have until 24 February 2019 to finish their assessment under the previous legislation and commence the activity.

Part 5 activities by proponents (who are not Part 5 authorities) can be assessed and approved under the previous legislation until 24 February 2019 if the environmental impact assessment commenced before 25 August 2017.

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 (TSC Act) to accompany their development application must have submitted a complete BioBanking statement application before the BC Act commenced on 25 August 2017.

Office of Environment and Heritage 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 BC Act 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 TSC Act.

An application for a BioBanking agreement under the repealed TSC Act 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

Any applicants wishing to create biodiversity credits after 24 February 2018 will need to contact the Biodiversity Conservation Trust about establishing a Biodiversity Stewardship Agreement on their land.

Find out more about the BioBanking scheme.

Special case – BioBanking agreements in biocertification assessment areas

BioBanking agreements can also be submitted after 24 February 2018 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 TSC Act become obligations to retire credits under the 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.

Office of Environment and Heritage 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 TSC Act become obligations to retire credits under the BC Ac) (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.

Office of Environment and Heritage 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.

Office of Environment and Heritage 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. 

Office of Environment and Heritage 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 BC 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 TSC Act is repealed and existing conservation obligations must be complied with.

Existing biodiversity certification applications that have already been submitted will continue to be processed under the TSC Act.

A notice identifying the biodiversity certification proposals which can be submitted after 25 August 2017 and considered under the TSC Act was published in the NSW Gazette on 24 November 2017. There are 19 existing biocertification proposals that are subject to these provisions.  

Find out more about the framework for biodiversity certification under the TSC Act

Page last updated: 22 February 2018