In November 2020, the NSW Government approved an amendment to the Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017 to provide a limited exemption from the Biodiversity Offsets Scheme to support rebuilds of property damaged or destroyed in the 2019–20 bushfires. The exemption under the Biodiversity Conservation Regulation 2017 was subsequently extended until 27 November 2023.
Bushfire rebuild exemption fact sheet
The fact sheet outlines when and how the exemption to rebuild property damaged or destroyed in the 2019–20 bushfires applies.
The Biodiversity Offsets Scheme exemption applies to the erection of or repair to buildings or structures:
- that require development consent
- that were lawfully erected immediately before being damaged or destroyed
- that were damaged or destroyed by bushfire between 5 August 2019 and 2 March 2020
- where the proposed development will reconstruct or replace the building or structure that was damaged or destroyed
- where the proposed development is the same, or substantially the same, as the building or structure that was damaged or destroyed
- where the development application has been before 27 November 2023.
The bushfire rebuild exemption from the Biodiversity Offsets Scheme eligibility guidance provides further information about these criteria.
Section 4.15 of the Environmental Planning and Assessment Act 1979 requires consideration of 'the likely impacts of that development, including environmental impacts on both the natural and built environments'.
The exemption from the Biodiversity Offsets Scheme removes the need to provide a biodiversity development assessment report (BDAR) with a development application to inform the assessment of the impact of the development on biodiversity values, for relevant applicants.
It is still open to the council to, for example, require developments to avoid impacts on locally important places and values, or to consider the likely impacts of clearing on groundwater, slope stabilisation, or other matters in local plans.
The exemption does not apply to the test of significance under section 7.2 of the Biodiversity Conservation Act. The exemption only applies to entry into the Biodiversity Offsets Scheme under clause 7.1A of the Biodiversity Conservation Regulation.
All bushfire-affected development that would have entered into the Biodiversity Offsets Scheme by exceeding the area clearing thresholds or by being undertaken on land mapped on the Biodiversity Values Map will continue to be exempt from the Biodiversity Offsets Scheme until 27 November 2023. Bushfire-affected development will require a test of significance after 27 November 2022 to determine if the Biodiversity Offsets Scheme applies to the development.
The exemption applies to requirements under the Biodiversity Conservation Regulation 2017. Where a proposal is likely to affect a matter of national environmental significance under the Environmental Protection and Biodiversity Conservation Act 1999, assessment and approval are still required.
Read more information about the environment assessment and approval process on the Department of Agriculture, Water and the Environment site.
The exemption applies to development for the replacement or repair of any building or structure that requires a development application. The building or structure must also have been lawfully erected immediately before being damaged or destroyed.
In some circumstances outbuildings such as sheds and barns do not require a development application and so would not fall into the scope of the exemption.
Construction of rural infrastructure can be an allowable activity on land to which the Local Land Services Act 2013 applies. Landholders are still responsible for ensuring threatened species and their habitats are not significantly affected.
The department plans to monitor clearing carried out under the Biodiversity Offsets Scheme exemptions using standard procedures (satellite and aerial imagery).
There is no legal requirement for councils to provide any monitoring or reporting data to the department, but any information that can be provided about numbers, scope and clearing associated with any exemptions is appreciated. You can send this information to bos.helpdesk@environment.nsw.gov.au
More monitoring information will be provided in due course.
Regional staff will be able to assist with questions on applying the exemption. This may be useful where the council is unsure whether an application meets the scope of the exemption: for example, if a development footprint is being moved and the council wants to consider what the clearing requirements would have been at the original site in comparison to the new site.
Councils can contact the department by email: bos.helpdesk@environment.nsw.gov.au
There is no formal integrated development process for considering exemptions. The scope of the exemption is provided in the legislation.
Councils will be able to seek assistance through the Biodiversity Offsets Scheme Helpdesk mailbox at bos.helpdesk@environment.nsw.gov.au