Legislation

OEH has responsibilities and functions under many pieces of environmental legislation.

Acts are general enabling laws while Regulations are laws on matters of detail.

Acts and Regulations relevant to OEH are listed by topic.

OEH is responsible for investigating and enforcing non-compliances with the legislation relating to Aboriginal cultural heritage.

The main piece of NSW legislation for managing and protecting Aboriginal cultural heritage is the National Parks and Wildlife Act 1974 (NPW Act).

The NPW Act is complemented by the National Parks and Wildlife Regulation which:

  • provides for the management of Aboriginal land and objects
  • makes administrative arrangements for Boards and Advisory Committees.

OEH manages and protects Aboriginal heritage in a number of ways. These include:

  • listing Aboriginal objects and Aboriginal places on the Aboriginal Heritage Information Management System (AHIMS) and on the site database, which is available to the public
  • working with the community to have Aboriginal Places declared
  • repatriating Aboriginal ancestral remains
  • entering into conservation agreements with private and public landholders
  • providing secretariat services to the Aboriginal Cultural Heritage Advisory Committee
  • issuing Aboriginal Heritage Impact Permits (AHIPs), and managing the public register of AHIPs
  • issuing stop-work orders, interim protection orders and remediation directions
  • issuing care and control agreements for Aboriginal objects salvaged under an AHIP.

OEH is responsible for investigating and enforcing non-compliance with the legislation relating to biodiversity and threatened species (excluding fish and marine vegetation, which are the responsibility of the Department of Primary Industries).

Before 25 August 2017 the key pieces of NSW legislation for managing and protecting biodiversity and threatened species were:

National Parks and Wildlife Act 1974 (NPW Act)

Threatened Species Conservation Act 1995 (TSC Act)

Environmental Planning and Assessment Act 1979 (EP&A Act).

Land management and biodiversity conservation (LMBC) reforms commenced on 25 August 2017. The reforms repealed the TSC Act and several parts and provisions of the NPW Act that dealt with threatened species and communities, and protected wildlife. Provisions under the EP&A Act that dealt with threatened species impact assessments were also repealed. 

The repealed provisions have been replaced with the Biodiversity Conservation Act 2016 (BC Act) and supporting regulations, which are administered by OEH. 

OEH continues to regulate impacts to biodiversity and threatened species through:

  • preparing strategies under a biodiversity conservation program to maximise long-term security of threatened species and ecological communities and minimise the risk of key threatening processes
  • issuing biodiversity conservation licences
  • issuing stop-work orders, interim protection orders and remediation directions
  • entering into private land conservation agreements and joint management agreements
  • administering biodiversity certification and the Biodiversity Offsets Scheme (BOS).

Like the TSC Act that it replaces, the BC Act is designed to:

  • conserve biological diversity and promote ecologically sustainable development
  • prevent the extinction and promote the recovery of threatened species and ecological communities
  • protect habitat for threatened species and ecological communities
  • ensure that the impact of any action affecting threatened species and ecological communities is properly assessed.

The BC Act provides for:

  • the establishment of an independent Scientific Committee responsible for listing threatened species
  • listing every threatened animal, plant, invertebrate and ecological community, using a specific process and specific criteria
  • identifying areas of outstanding biodiversity values (including habitat that is critical to the survival of an endangered species, population or ecological community)
  • prohibiting the harming, picking, possessing, buying or selling of individual threatened species
  • encouragement of private sector conservation
  • offsetting of certain development impacts
  • consulting and cooperating with landholders, conservation groups, agencies, local councils and the general community
  • considering biodiversity at the early stage of land-use planning and integrating biodiversity conservation with development-control processes
  • licensing and enforcement.

Impact assessment

From 25 August 2017, provisions in the EP&A Act and TSC Act dealing with assessment of impacts on threatened species, populations and ecological communities were repealed and replaced by provisions in the BC Act.

The BC Act requirements for impact assessment are significantly different as they introduce the Biodiversity Offsets Scheme (BOS). However, proponents of activities that are assessed under Part 5 of the EP&A Act can choose to continue with a traditional threatened species assessment process and species impact statement (SIS) under the BC Act rather than participating in the BOS.

Extensive savings and transitional provisions are also in place to preserve the continued operation of repealed provisions that relate to certain applications for approval under the EP&A Act. These provisions are contained in the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (PDF 337KB).

Other relevant legislation

Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth) 

Fisheries Management Act 1994 

Part 5A of the Local Land Services Act 2013 

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

The main pieces of NSW legislation for managing and protecting coastal areas are:

Coastal Protection Act 1979 (Coastal Protection Act)

Environmental Planning and Assessment Act 1979 (EP&A Act)

The Coastal Protection Act defines the boundaries of the coastal zone by a series of maps (see sections 4 and 4A of the Act). Generally, these maps show the coastal zone to extend:

  • one kilometre inland from the coast
  • one kilometre landward around any bay, estuary, coastal lake or lagoon
  • one kilometre inland from either bank of a coastal river.

The coastal zone also includes coastal waters, which generally extend up to three nautical miles from the NSW coastline.

Coastal development is mainly controlled under the EP&A Act. However, development that occurs in the coastal zone is subject to additional laws and policies set out in the Coastal Protection Act.

The Coastal Protection Act is complemented by the Coastal Protection Regulation 2011, which:

  • regulates development below the mean high water mark
  • specifies that the requirements in the Code of Practice published by OEH in August 2013 apply to temporary coastal protection works. Failure to comply with the Code is not an offence although non-complying development will not be temporary coastal protection works
  • provides for the authorisation of certain people for the purposes of the Coastal Protection Act.
  • prescribes certain offences as penalty notice offences and prescribes penalty notice amounts.

Coastal panel

Part 21 of the Coastal Protection Act creates the NSW Coastal Panel, a statutory authority with members from local government and public authorities.

The Panel provides expert advice to the Minister administering the Act and to local councils. The Minister may refer draft coastal-zone management plans to the Panel for review. In addition, the Panel has statutory roles in relation to coastal protection works.

OEH is represented on the Coastal Panel and provides secretariat support for it.

Energy and Utilities Administration Act 1987

OEH administers only Part 6A of this Act, section 40(1A), and section 45 insofar as it relates to Part 6A.

Part 6A establishes the Climate Change Fund, which is used to promote water and energy savings and reduce the impact of climate change associated with water and energy activities. OEH administers the Fund.

Environmental Trust Act 1998

This Act sets up the Environmental Trust, which funds projects in restoration and rehabilitation, research and environmental education and the purchase of water entitlements for increasing environmental flows. OEH administers Environmental Trust programs.

Local Government Act 1993

OEH administers Part 2A of Chapter 6 of the Act. This Part allows councils to make environmental upgrade agreements with owners of certain building owners and finance providers, as a way of funding works to improve the energy, water or environmental efficiency of those buildings.

Local Government (General) Regulation 2005

Part 5A of the Regulation relates to environmental upgrade agreements under Part 2A of Chapter 6 of the Local Government Act 1993 (that is, the only part of the Act administered by OEH). Part 5A of the Regulation:

  • defines environmental upgrade works that can be made the subject of an environmental upgrade agreement
  • provides for the levying of environmental upgrade charges
  • specifies mandatory guidelines with which councils must comply when dealing with environmental upgrade agreements.

NSW heritage consists of places and objects that contribute to the community’s sense of identity, and which have been identified for protection and interpretation for future generations. It includes:

  • archaeological sites
  • built structures (bridges, buildings, monuments and industrial heritage)
  • areas (gardens, streets, conservation precincts, landscapes)
  • individual objects
  • shipwrecks.

The main piece of legislation for managing and protecting heritage is:

Heritage Act 1977 (Heritage Act).

The Act is intended to:

  • promote understanding and conservation of the state’s heritage
  • provide for identifying and registering items of state heritage significance
  • provide for the interim protection of items, pending an assessment of their state heritage significance
  • encourage the adaptive reuse of items of state heritage significance
  • help owners conserve items of state heritage significance.

The Act is complemented by the Heritage Regulation 2012, which:

  • prescribes the forms to be used and fees applicable when making applications
  • prescribes the minimum standards of maintenance and repair of buildings, works and relics, ruins and moveable objects listed on the State Heritage Register or located in a precinct listed on the Register
  • prescribes classes of items that are required to be entered in a Heritage and Conservation Register.

OEH investigates and enforces non-compliance with legislation relating to heritage.


Heritage Council

The Act creates the Heritage Council of New South Wales, an independent statutory authority.

The Council:

  • provides advice on heritage matters to the Minister for Heritage
  • recommends items of state significance for listing on the State Heritage Register
  • determines whether proposed changes to items on the State Heritage Register would alter their heritage significance
  • recommends the interim protection of potential heritage items while their significance is assessed
  • advises the community on heritage
  • is responsible for the NSW Heritage Grants program, which helps local communities identify, conserve, interpret and promote the state’s heritage.

Heritage Division

OEH’s Heritage Division supports the work of the Council by identifying, listing and recording items on which the Council is to make a determination. It also:

  • maintains the State Heritage Register
  • registers state shipwrecks
  • assesses applications made to the Heritage Council to change listed items
  • issues interim heritage orders for items of state or local heritage significance, and protection orders for shipwrecks
  • enters into heritage agreements
  • regulates minimum standards of maintenance and repair
  • administers the NSW Heritage Grants program on behalf of the Heritage Council
  • provides secretariat support for the Heritage Council.

Soil Conservation Act 1938

Parts 2A, 3 and 4, and sections 15 and 30A insofar as they relate to those Parts, are jointly administered the Minister for Lands and Water and the Minister for the Environment. Parts 2A, 3 and 4 of the Act provide for the management of land degradation and erosion, the management of areas of erosion hazard and management of the impact of erosion on waterways.

OEH carries out research for the purpose of conserving and restoring landscapes.

The NSW marine estate includes:

  • coastal waters out to three nautical miles
  • estuaries, and coastal lakes, lagoons and wetlands
  • beaches, dunes, headlands and rock platforms.

The Act related to its management is the Marine Estate Management Act 2014.

This Act creates the Marine Estate Management Authority, an advisory council that provides input to planning for the entire NSW marine estate. OEH and other agencies involved in managing the marine estate are represented on the Authority.

Through the National Parks and Wildlife Service, OEH remains responsible for managing coastal national parks.

The Act is complemented by the Marine Estate Management Regulation 2009, which:

  • allows the relevant Ministers to provide consent
  • requires consent to be refused in certain circumstances, and allows it to be refused in others
  • provides for the issuing of permits as the form by which consent is issued
  • prescribes the powers of authorised officers
  • prescribes penalty notice offences.

Before 25 August 2017, the main pieces of legislation for managing and protecting native vegetation were:

Native Vegetation Act 2003 (NV Act)

Native Vegetation Regulation 2013 (NV Regulation).

The NV Act and Regulation were repealed on 25 August 2017. Provisions regulating the clearing of native vegetation in rural areas are now contained in a new Part 5A of the Local Land Services Act 2013 (LLS Act) and, in respect of private native forestry, a new Part 5C of the Forestry Act 2012.

Provisions dealing with the clearing of native vegetation in urban, peri-urban and environmental areas are contained in a new environmental planning instrument, administered by the Department of Planning and Environment, called the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017.

Part 5A of the LLS Act is generally administered by LLS. However, OEH has responsibility for native vegetation mapping and compliance under that Part of the Act.

Part 5C of the Forestry Act 2012 is administered by the EPA and provides an interim regulatory regime until the current forestry reform is completed.

Savings and transitional provisions that deal with existing Property Vegetation Plans (PVPs) and development consents are contained in Part 14 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (PDF 337KB).

OEH manages national parks and other protected areas through its National Parks and Wildlife Service (NPWS).

The main Act governing the management of national parks and other reserves is:

National Parks and Wildlife Act 1974 (NPW Act).

Under the NPW Act, the Chief Executive of OEH is responsible for the care, control and management of all national parks, historic sites, nature reserves, reserves, Aboriginal areas and state game reserves in NSW. State conservation areas, karst conservation reserves and regional parks are also administered under the Act.

The NPW Act is complemented by the National Parks and Wildlife Regulation 2009, which:

  • provides for the regulation of the use of national parks and other areas administered by the NPWS, including conduct generally, traffic and mooring of vessels
  • provides for the preservation of public health in Kosciuszko National Park
  • obliges the Snowy Hydro Company to comply with the Snowy Plan of Management
  • specifies requirements for licensing and certification
  • provides for the protection and care of fauna
  • provides for the management of Aboriginal land and objects
  • provides for Aboriginal people to be exempted from the restrictions imposed by various sections of the Act on the hunting of certain animals and the gathering of certain plants
  • makes administrative arrangements for Boards and Advisory Committees.

Types of parks and reserves

Parks and reserves that can be created under the NPW Act include:

  • historic sites
  • State conservation areas
  • regional parks
  • karst conservation reserves
  • nature reserves
  • Aboriginal areas.

OEH is responsible for identifying land that might be dedicated as a park or reserve and managing its transfer to the parks system.


Joint management of parks

The NPW Act enables government to enter into joint management arrangements with local Aboriginal people to share responsibility for a park’s management.

In addition, the Native Title Act 1993 (Commonwealth) (Native Title Act) enables OEH to enter into indigenous land-use agreements.

OEH enters into 3 main types of co-management agreements:

  • Indigenous land-use agreements made under the Native Title Act
  • lease-back arrangements under Part 4A of the NPW Act
  • Memoranda of Understanding.

Filming approval

Filming Approval Act 2004

This Act enables approvals to be granted to carry out filming in national parks, marine parks and other areas regulated under the NPW Act provided certain criteria are met. The granting of such approval is limited in respect of wilderness areas to filming for educational, research or tourism purposes. 

Wilderness Act 1987

Under the Wilderness Act, OEH is responsible for the investigation, protection and management of wilderness areas in NSW.

Before 25 August 2017, the main pieces of legislation for managing and protecting wildlife were:

National Parks and Wildlife Act 1974 (NPW Act)

National Parks and Wildlife Regulation 2009 (NPW Regulation).

The land management and biodiversity conservation (LMBC) reforms commenced on 25 August 2017. On that date, the provisions dealing with harm or damage to and picking of threatened or protected species, or habitat of threatened species and communities, were repealed, and replaced with similar (but not identical) provisions in Part 2 of the Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017.

Savings and transitional provisions that deal with existing licences and certificates are contained in the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (PDF 337KB).