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, Industry and Environment has the power to certify development under clause 34A.
The Secretary of the Department of Planning, Industry 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, Industry and Environment for the SIS environmental assessment requirements. These are known as the Chief Executive Requirements (CERs).
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.