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 your Local Government Support Officer.

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?

The Biodiversity Values Map and Threshold Tool User Guide explains how to determine the footprint of clearing.  

Vegetation maps are not yet available to include in the Biodiversity Values Map and Threshold Tool. The User Guide 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 Values Map and Threshold Tool User Guide.

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 applied in determining whether the Biodiversity Offset Scheme threshold is triggered?

Clause 7.3(4) of the Biodiversity Conservation Regulation 2017 (BC Regulation) provides that a proposed development (other than subdivision) does not trigger the Biodiversity Offsets Scheme due to the biodiversity values map 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. The other elements of the Biodiversity Offsets Scheme threshold must still be considered in determining whether the proposed development will trigger the Biodiversity Offsets Scheme.

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 values map 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 Environmental Planning and Assessment Act 1979 (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 Biodiversity Conservation Act 2016 (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, the Department of Planning, Industry and Environment collects and analyses spatial data for the purposes of monitoring vegetation clearing. This information could be made available to Councils for monitoring at the local government area (LGA) level if desired.

Does the Biodiversity Assessment Method apply to developments on category 1 land (as per Part 5A Local Land Service Act 2013)?

Sometimes. Clearing of native vegetation on land that meets the definition of category 1 land (under the Local Land Services Act 2013 (LLS Act)) does not require assessment or offsetting under the Biodiversity Assessment Method (BAM) (under the BC Act). In practice, this means that native vegetation on category 1 land is not included in any area clearing calculations when deciding whether a biodiversity development assessment report should be prepared.

A development on category 1 land may involve other biodiversity impacts for which a biodiversity development assessment report will still be required:

  • The development will have a prescribed impact on land mapped on the biodiversity values map (prescribed impacts are listed in clause 6.1 of the BC Regulation), not including native vegetation clearing associated with the prescribed impact.
  • A test of significance finds that a significant impact on threatened species, ecological communities or their habitats is likely to result from the proposed development.

While the Native Vegetation Regulatory map is being finalised, landowners will be responsible for determining the categorisation of their land, in accordance with the LLS Act.

This is set out on the Local Land Services website.

If you would like more information about this process, you can view the Local Land Services website or contact a member of the Local Land Services team.

For developments occurring on rural land (not including RU5 land), the Department is recommending to accredited assessors that they first establish whether land is category-1 – exempt land. An application for planning approval submitted to a consent authority should clearly indicate the area of land determined to be category 1 – exempt land.

If the Biodiversity Offset Scheme applies to the proposal, impacts on additional biodiversity values prescribed in the regulation need to be assessed in the category 1 area. Requirements for assessment of impacts on prescribed biodiversity values are set out in the BAM. Prescribed impacts are listed in clause 6.1 of the BC Regulation.

Consent authorities can expect that the biodiversity development assessment report will only contain information relevant to prescribed impacts for category 1 land. Impact assessment and offset calculations relating to vegetation integrity and habitat suitability are not required. 

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

Council’s may be interested in contributing to the Biodiversity Values Map (BV Map). This could include providing information in relation to the following:

  • core koala habitat identified in a plan of management under State Environmental Planning Policy No. 44 – Koala Habitat Protection (SEPP 44)
  • land that contains threatened species or threatened ecological communities identified as potential serious and irreversible impacts (SAII) under s.6.5 of the BC Act
  • council-nominated areas with connectivity or threatened species habitat that the Minister for the Environment considers will conserve biodiversity at bioregional or state scale.

We will develop guidelines to help councils develop nominations and the format of mapping to be provided. The draft guidelines will be provided to councils in mid-2019 for comment. Once the guidelines have been finalised, they will be made available from the Biodiversity Values Map webpage. We will then call for TEC mapping and nominations from local councils of areas to be considered for inclusion on the BV Map. Any enquiries on the BV Map can be sent to lmbc.support@environment.nsw.gov.au.

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 s.79c of the EP&A Act.

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

Assessment pathway

How does 'opting in' to the Biodiversity Offset Scheme 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 Environment Agency Head (EAH).

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 s.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 s.7.3 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?

The development application will be assessed in accordance with standard procedures under s.79c of the Environmental Planning and Assessment Act 1979 (EP&A Act). The EP&A Act requires consideration of the likely impacts of a development, including the environmental impacts on the natural environment when evaluating a development application.

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. If a test of significance is not prepared, the development application must be accompanied by a justification for the exclusion of species from consideration in a test of significance, in accordance with the Threatened Species Test of Significance Guidelines.The development application should also be accompanied by evidence that the Biodiversity Offset Scheme thresholds have not been triggered.

Are impacts on the Saltmarsh Endangered Ecological Community assessed under the Biodiversity Conservation Act 2016 and the Biodiversity Assessment Method?

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 (BAM).

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 Biodiversity Conservation Regulation 2017 (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?

The department of Planning, Industry and Environment 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 the Department.

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 s.79C of the Environmental Planning and Assessment Act 1979 (EP&A Act). 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 (BC Act) 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 s.79C of the EP&A Act. 

The BC Act 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 the Department of Planning, Industry and Environment required?

Concurrence is only required from 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 (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 the Department 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 the Department of that decision and the proposed reasons for the decision.  

The Department 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?

The Department of Planning, Industry and Environment is responsible for compliance matters relating to clearing activities regulated by Part 5A of the Local Land Services Act 2013 (LLS Act).  

If council receives a call about suspected illegal clearing on land regulated by Part 5A of the LLS Act, 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 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 EP&A Act. 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 Biodiversity Conservation Act 2016, 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 (Vegetation SEPP). Clearing that requires approval by the Native Vegetation Panel in urban areas and does not have approval is also a compliance matter under the Vegetation SEPP. 

In practice, it is envisaged that council will bring proceedings to remedy or restrain a breach of the Vegetation SEPP; however, the local land services (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, Industry 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 the Department 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 the Department. 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, so they are 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). The Department of Planning, Industry and Environment 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 BCT. The Department of Planning, Industry and Environment 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.

Other questions

Who funds local council rate relief for conservation agreements?

Land owners who enter into conservation agreements under the Biodiversity Conservation Act 2016 (BC Act) 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 s.91 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 BC Act. 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 (Vegetation SEPP), 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 the Department of Planning, Industry and Environment and moe 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 s.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 the Department.  

The Department would consider whether to list that action within the ancillary rules document.

Page last updated: 20 August 2019