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.
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):
- City of Campbelltown
- City of Fairfield
- City of Hawkesbury
- City of Liverpool
- City of Penrith
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 more 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 former Office of Environment and Heritage (OEH) Chief Executive before 25 August 2017.
If 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.