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.

This page describes different scenarios that may apply to individuals or companies that have commenced activities under the repealed Threatened Species Conservation Act 1995 (TSC Act).

For information about why you may need to apply for an assessment of reasonable equivalence, see our Applying for an assessment of reasonable equivalence page.

If you have an existing BioBanking credit obligation and wish to apply for an assessment of an application for reasonable equivalence, see our Applying for an assessment of reasonable equivalence of biodiversity credits – BioBanking credit obligation page.

If you hold BioBanking credits issued under the TSC Act and wish to apply for an assessment of reasonable credit equivalence, see our Applying for an assessment of reasonable equivalence of biodiversity credits – existing BioBanking credits page.

Scenarios

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

The NSW Government 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 the 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 local development application or modification is subject to the biodiversity assessment requirements of the BC Act. For these developments the transitional arrangements no longer apply.

Local development application means an application for development consent under Part 4 of the Environmental Planning & Assessment Act 1979 (EP&A Act) (not including state significant development (SSD)). Modification means a modification application to an approved development under Part 4 of the EP&A Act (not including SSD).

Western Sydney Interim Designated Areas

The former planning provisions continue to apply to local development applications or modifications submitted before 25 November 2019 in the following western Sydney local government areas (which have been declared by the Minister for the Environment as Interim Designated Areas):

  • Camden
  • City of Campbelltown
  • City of Fairfield
  • City of Hawkesbury
  • City of Liverpool
  • City of Penrith
  • Wollondilly

Former Interim Designated Areas in other locations

From 25 November 2018, the following local government areas and locations are no longer Interim Designated Areas:

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

The biodiversity impacts of new local development applications or modifications submitted in these areas under Part 4 of the EP&A Act (not including SSD) from 25 November 2018 onwards must be assessed in accordance with the BC Act.

Species impact statements

If a Species Impact Statement is required for local development or modification in a current or former Interim Designated Area, it must be submitted within 6 months of the end of the relevant Interim Designated Area.

In Western Sydney Interim Designated Areas, the last date to submit a Species Impact Statement will be 24 May 2020. For all other Interim Designated Areas, the last day to submit a Species Impact Statement will be 24 May 2019.

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, visit Biodiversity Offsets Scheme support or call 131 555. 

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 Environment Agency Head 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 had 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.

If you have an existing BioBanking credit obligation and wish to apply for an assessment of an application for reasonable equivalence, go to our Applying for an assessment of reasonable equivalence of biodiversity credits – BioBanking credit obligation page.

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 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 Environment Agency Head will determine the ‘reasonably equivalent’ credit obligation that remains to be satisfied by the retirement of biodiversity credits.

If you have an existing BioBanking credit obligation and wish to apply for an assessment of an application for reasonable equivalence, go to our Applying for an assessment of reasonable equivalence of biodiversity credits – BioBanking credit obligation page.

I own unsold biodiversity credits generated by a BioBanking agreement

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

For information about why you may need to apply for an assessment of reasonable equivalence, go to our Applying for an assessment of reasonable equivalence page.

If you hold BioBanking credits issued under the TSC Act and wish to apply for an assessment of reasonable credit equivalence, go to our Applying for an assessment of reasonable equivalence of biodiversity credits – existing BioBanking credits page.

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.

For information about why you may need to apply for an assessment of reasonable equivalence, go to our Applying for an assessment of reasonable equivalence page.

If you hold BioBanking credits issued under the TSC Act and wish to apply for an assessment of reasonable credit equivalence, go to our Applying for an assessment of reasonable equivalence of biodiversity credits – existing BioBanking credits page.

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 before 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 before 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: 27 August 2019