Clause 34A certification

Certification recognising offset arrangements made before the commencement of Part 7 of Biodiversity Conservation Act 2016

The Biodiversity Conservation Act 2016 (BC Act) commenced in August 2017 and changed the way biodiversity impacts are assessed for proposed development.

Transitional arrangements are provided by Clause 34A, Biodiversity Conservation Savings &Transition Regulation (S&T Regulation) to recognise past offsetting agreements secured as part of a concept plan approval or a relevant planning arrangement.

Clause 34A certification applies if the Secretary of the Department or their delegate is satisfied that:

  • The biodiversity impacts of the proposed development were satisfactorily assessed before the commencement of the Act as part of a concept plan approval or relevant planning arrangement, and
  • The conservation measures have been secured into the future (by a planning agreement, a land reservation or otherwise) to offset the residual impact of the proposed development on biodiversity values after the measures required to be taken to avoid or minimise those impacts.

Power to certify

The Secretary of the Department of Planning and Environment has the power to certify development under clause 34A. 

The Secretary of the Department of Planning and Environment is responsible for the decision to certify:

  • proposed development within a concept plan approval that offset residual impacts and were previously determined by the Department under Part 3A of the Environmental Planning &Assessment Act 1979 (c34A (3)) or
  • proposed development where impacts were previously assessed and offset as part of a relevant planning arrangement (c34A (4)).

Clause 34A(3) - concept plan approval

A ‘concept plan approval’ means an approved concept plan (whether approved before or after the repeal of Part 3A of the Environmental Planning and Assessment Act 1979 (EP&A Act) in respect of a transitional Part 3A project within the meaning of Schedule 6A to that Act.

Clause 34A(4) - relevant planning arrangement

`Relevant planning arrangement’ is a broad term intended to capture any agreed arrangement made in association with a planning instrument, concurrence or any other application or request under the EP&A Act when the biodiversity impacts of a proposed development have been assessed and conservation measures have been secured to offset residual impacts.   

A relevant planning arrangement may be part of or include:

  • A Local Environment Plan amendment
  • A voluntary planning agreement
  • An SIS concurrence
  • A Development Control Plan
  • A Part 4 development approval
  • A BioBanking statement

Effect of Clause 34A Certification

The Biodiversity Offsets Scheme (BOS) under Part 7 of the BC Act does not apply to proposed developments certified under clause 34A.

Non-biodiversity impacts will be assessed under section 4.15 of the (EP&A Act).

If a clause 34A certification has been granted, the biodiversity impacts of development are assessed as they would have been before the introduction of the BC Act. This includes considering whether there is likely to be a significant impact on threatened species, populations or ecological communities or their habitats in accordance with the now repealed section 5A of the EP&A Act (7-part test). 

Species impact statement (SIS) Chief Executive Requirements (CERs)

When a planning authority determines that there is likely to be a significant impact, the proponent must prepare a species impact statement (SIS). When a clause 34A certification has been granted, the SIS requirements are regulated by Part 6 Division 2 (109 – 113) of the (now repealed) TSC Act. This includes a request to the Secretary of the Department of Planning and Environment for the SIS environmental assessment requirements. These are known as the Chief Executive Requirements (CERs).

SIS concurrence

When an SIS has been requested under a clause 34A certification, concurrence will continue to be regulated by the now repealed section 79B of the EP&A Act. A Department assessment of the SIS will address the statutory 'heads of consideration' to determine whether to grant concurrence or not.

This assessment may also consider previous voluntary offsets and how those conservation measures have significantly benefited threatened species. In some cases, the Department may recommend further conservation actions, including avoidance or mitigation strategies, as part of a conditional concurrence under s79B(8A) of the EP&A Act.

If a certification is granted under clause 34A, a development application will not require assessment under Part 7 of the Biodiversity Conservation Act 2016 (BC Act). Instead, the former planning provisions will apply with respect to biodiversity assessment. Therefore, you would need to submit the development application with the same biodiversity information that would have previously been required prior to the commencement of Part 7 of the BC Act.

This includes considering whether there is likely to be a significant impact on threatened species, populations or ecological communities, or their habitats in accordance with the now repealed section 5A of the Environmental Planning and Assessment Act 1979 (EP&A Act). In the case that a significant impact is determined, a species impact statement (SIS) will be required according to the provisions under the now repealed Threatened Species Conservation Act 1995 (TSC Act). Concurrence will be considered by the Department according to section 79B of the EP&A Act as though it had not been repealed.

Proposed development is development that is subject to a development application (DA) under Part 4 of the EP&A Act, including modifications to a development consent, or development (including major projects) that are subject to future or pending DAs.
If you are unsure if a proposed development is eligible for certification under clause 34A, we recommend that you can make an inquiry to the BAM support mailbox. This will enable the Department to review the proposed development with respect to the requirements under clause 34A and if required to consult local council and seek expert input to determine whether clause 34A application is appropriate.

No. Clause 34A (5) specifies that proposed development that is eligible for certification, may either be the subject of a specified development application or the subject of all or any pending or future development applications that are part of a relevant planning arrangement or concept plan approval.

For the purposes of a clause 34A certification, conservation measures are those elements of the relevant planning arrangement that offset the residual impacts to biodiversity, after measures have been taken to avoid and minimise impact.

Conservation measures are secured by legally binding mechanisms, be that a planning agreement, land reservation or otherwise. This may include, for example, land dedication or a conservation agreement that provides for protection in perpetuity.

If an application for certification appears to fall within a broader planning arrangement that meets the provisions of clause 34A (4), the Department may extend the scope of assessment to the entire area subject to the relevant planning arrangement, offsets and previous biodiversity impact assessment.

A satisfactory assessment of biodiversity impacts means that residual impacts for proposed development have been adequately assessed and are consistent with the relevant planning arrangements and the conservation measures that offset impacts.

Where a clause 34A certification has been issued, planning authorities will assess the biodiversity impacts of a proposed development as they would have prior to the introduction of Part 7 of the BC Act. This includes considering whether there is likely to be a significant impact on threatened species, populations or ecological communities or their habitat in accordance with the now repealed section 5A of the EP&A Act (7-part test). Where a significant impact is determined by the planning authority, an SIS will be required and the proponent will request the environmental assessment requirements from the Department. The Department will consider previous offsets on a case by case basis when preparing the environmental assessment requirements for the SIS.