If a decision maker decides to approve a development under Part 4 of the Environmental Planning and Assessment Act 1979 (not including major projects) with a lower credit obligation than described in a biodiversity development assessment report, concurrence is required from the Department of Planning, Industry and Environment (the Department).
Concurrence decisions will be made based on the merits of each individual development. Reducing a credit obligation means a net loss of biodiversity across New South Wales. Routine discounting by decision makers undermines the purpose of the Biodiversity Conservation Act 2016 and the integrity of the Biodiversity Offsets Scheme (BOS). For this reason, routine discounting by a decision maker will not be supported.
The Department is committed to applying the BOS and supporting the Biodiversity Conservation Act 2016, including the conservation of biodiversity at bioregional and state scales. The BOS delivers a transparent, consistent and scientific approach to biodiversity assessment and offsetting partnered with in-perpetuity biodiversity stewardship agreements to create secure offset sites.
How does the Department decide whether to grant concurrence?
The Biodiversity Conservation Act 2016 creates the framework for a reduced credit obligation. The concurrence decision must be made before the decision maker determines the development application.
If concurrence is granted by the Department and the decision maker then approves the development application, the conditions of consent will reflect the reduced credit obligation.
Any concurrence granted only applies to an offset obligation under the Environmental Planning and Assessment Act 1979. If significant impacts are proposed to threatened entities listed under the Environment Protection and Biodiversity Conservation Act 1999, the proponent should contact the Department of Agriculture, Water and the Environment.
When deciding whether to grant concurrence to a request for a reduced credit obligation, the Department considers:
- any biodiversity development assessment report prepared for the development and the impacts of the development on biodiversity values that will not be offset
- any further assessment report prepared by, or on behalf of, the proponent
- facilitation of ecologically sustainable development.
The Biodiversity Conservation Act 2016 adopts the principles of ecologically sustainable development as described in section 6(2) of the Protection of the Environment Administration Act 1991. Ecologically sustainable development requires effective integration of social, economic and environmental considerations in decision-making processes.
Ecologically sustainable development can be achieved through implementation of 4 principles and programs:
- the precautionary principle
- intergenerational equity
- conservation of biological diversity and ecological integrity
- improved valuation, pricing and incentive mechanisms.
Environmental systems and resources, including biodiversity, are an asset belonging to the community of New South Wales. A reduced credit obligation equates to a permanent loss of biodiversity at a local, regional and/or statewide scale. When a reduced credit obligation is granted, the community loses part of this asset. The value of this asset is effectively transferred to a private body, reducing the costs of their development.
To effectively integrate social, economic and environmental considerations in concurrence decisions, the Department needs to be certain that the gains to the community are long term, provide benefit at a regional or statewide scale and significantly outweigh the net loss of biodiversity.
The Department considers any request for a reduced credit obligation in relation to the community gain proposed against each of the principles of ecologically sustainable development.
If a development successfully demonstrates its value to the community, the Department will consider the significance of the proposed reduced credit obligation.
The proposed reduction should be minimised to support a claim to community benefit. If the Department is not satisfied the development has been planned to avoid and minimise impacts on biodiversity values, concurrence may not be granted.
In assessing a proposed reduction in credit obligation, the Department will evaluate the biodiversity costs of the project relative to other project costs and profits.
Information for proponents considering seeking a reduced credit obligation
If you are considering seeking a reduced credit obligation, you must do so at the time you lodge your development application (i.e. before development approval) and provide supporting reasons. You must also demonstrate that your proposed development provides community benefit.
Your decision maker will consider whether to support your request for a reduced credit obligation. If your request is supported, the decision maker will seek concurrence from the Department.
To request a reduced credit obligation, your development application must be accompanied by a letter that includes information about:
- the biodiversity offset obligation produced by the Biodiversity Assessment Method and recorded in the Biodiversity Development Assessment Report
- the like-for-like biodiversity credits intended to be offset
- any biodiversity credits intended to be offset using variation rules and supporting evidence for having taken reasonable steps to find like-for-like offsets
- the biodiversity credits that will not be offset as a result of the reduced credit obligation.
When seeking a reduced credit obligation, you must provide justification that details the community gain delivered by the project, including:
- a description of the social and economic profile of the community supported by reliable, peer-reviewed and published sources
- an outline of the nature of the community gain
- an analysis of the spatial and temporal scale of the community gain supported by evidence from a qualified professional
- an analysis of the distribution of the gain across the community supported by evidence from a qualified professional
- an outline of how the community gain will be delivered, who will be responsible and how the delivery of the benefit will be secured
- an outline of how the community gain aligns with regional social and economic priorities
- a full financial statement detailing costs and returns for the development, including the profit margin applied, validated by a qualified professional
- a statutory declaration testifying to the accuracy of the financial statement and all other data and information supporting evidence of community gain.
The Department will consider any further assessment report prepared by or on behalf of the developer to support the request for a reduced credit obligation.
A concurrence fee of $320 is payable to the Department when the decision maker makes a request for concurrence. Requests for concurrence must be lodged electronically using the NSW Planning Portal. The proponent will receive a notification requiring payment of the concurrence fee via the portal.
Information for decision makers about requests for a reduced credit obligation
When a proponent for a local development application is seeking a reduced credit obligation, the request must be made by letter and include the information outlined above. The decision maker must forward a copy of the development application and supporting information, via the NSW Planning Portal, to the Department within 10 days after the application is lodged (as per clause 59(3) of the Environmental Planning and Assessment Regulation 2000).
The decision maker must notify the Department whether or not it supports a reduced credit obligation within 30 days after the application is lodged, and therefore whether it is seeking concurrence or not (as per clause 59(3) of the Environmental Planning and Assessment Regulation 2000). If the decision maker intends to support a reduced credit obligation, it must include the amount of the credit reduction and reasons for the reduction within the 30-day notification period.
In accordance with clause 59(1) and (2) of the Environmental Planning and Assessment Regulation 2000, when a decision maker is seeking concurrence for a proposed credit reduction for a local development that didn't indicate on its face that a reduction was being sought, it must forward a copy of the development application (via the NSW Planning Portal ) to the Department within 14 days after the application is lodged and include its reasons for the proposed reduction. This is relevant when the decision maker is proposing the credit reduction rather than the proponent.
A concurrence fee of $320 is payable to the Department when the decision maker requests concurrence. The proponent will receive a notification requiring payment of the concurrence fee via the planning portal.
Local development applications accompanied by a biodiversity development assessment report (as required by section 7.7(2) of the Biodiversity Conservation Act 2016) are known as ‘threatened species development’ and must be publicly exhibited under clause 8A of Schedule 1 to the Environmental Planning and Assessment Act 1979 for a minimum period of 28 days. Submissions are managed by the decision maker. If the application includes a request for a credit reduction then this should be reflected in the exhibited documents.
The Department must notify the decision maker of its decision to grant or refuse concurrence for a reduced credit obligation within 21 days after it receives the last of the submissions, or advice from the decision maker that no submissions were made (as per clause 62(1)(b) of the Environmental Planning and Assessment Regulation 2000).
The Department may 'stop the clock' to ask for more information from the proponent and/or decision maker. A formal request for additional information will be issued within statutory timeframes and includes the timeframe for return of the information (as per clauses 60 and 110 of the Environmental Planning and Assessment Regulation 2000).
The Department may consider requests for concurrence submitted outside these timeframes.
If at any point after the request for concurrence is made the decision maker decides not to support the reduced credit obligation, the decision maker must notify the Department.
If you have any questions about the process for seeking a reduced credit obligation, please contact the Department at BAM Support.