The Biodiversity Offsets Scheme applies to:
- local development (assessed under Part 4 of the Environmental Planning and Assessment Act 1979) that triggers the Biodiversity Offsets Scheme Threshold or is likely to significantly affect threatened species based on the test of significance in section 7.3 of the Biodiversity Conservation Act 2016
- state significant development and state significant infrastructure projects, unless the Secretary of the Department of Planning, Industry and Environment and the environment agency head determine that the project is not likely to have a significant impact
- biodiversity certification proposals
- clearing of native vegetation in urban areas and areas zoned for environmental conservation that exceeds the Biodiversity Offsets Scheme threshold and does not require development consent
- clearing of native vegetation that requires approval by the Native Vegetation Panel under the Local Land Services Act 2013
- activities assessed and determined under Part 5 of the Environmental Planning and Assessment Act 1979 (generally, proposals by government entities) if proponents choose to ‘opt in’ to the Scheme.
A Biodiversity assessment and approvals decision support tool is available from the Office of Local Government to help identify biodiversity assessment requirements for proposed developments and activities.
Proponents will need to supply evidence relating to the triggers for the Biodiversity Offsets Scheme Threshold and the test of significance (where relevant) when submitting their application to the consent authority.
The Biodiversity Offsets Scheme Threshold
The Biodiversity Offsets Scheme Threshold is a test used to determine when it is necessary to engage an accredited assessor to apply the Biodiversity Assessment Method (the BAM) to assess the impacts of a proposal.
It is used for local developments (development applications submitted to councils) and clearing that does not require development consent in urban areas and areas zoned for environmental conservation (under the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017).
The Biodiversity Conservation Regulation 2017 sets out threshold levels for when the Biodiversity Offsets Scheme will be triggered. The threshold has two elements:
- whether the amount of native vegetation being cleared exceeds an area threshold
- whether the impacts occur on an area mapped on the Biodiversity Values Map published by the Environment Agency Head.
If clearing and other impacts exceeds either trigger, the Biodiversity Offset Scheme applies to the proposed development, including biodiversity impacts prescribed by clause 6.1 of the Biodiversity Regulation 2017.
Area clearing threshold
The area threshold varies depending on the minimum lot size (shown in the Lot Size Maps made under the relevant Local Environmental Plan (LEP)), or actual lot size (where there is no minimum lot size provided for the relevant land under the LEP).
|Minimum lot size associated with the property||Threshold for clearing, above which the BAM and offsets scheme apply|
|Less than 1 ha||0.25 ha or more|
|1 ha to less than 40 ha||0.5 ha or more|
|40 ha to less than 1000 ha||1 ha or more|
|1000 ha or more||2 ha or more|
The area threshold applies to all proposed native vegetation clearing associated with a proposal, regardless of whether this clearing is across multiple lots. In the case of a subdivision, the proposed clearing must include all future clearing likely to be required for the intended use of the land after it is subdivided.
If the land on which the proposed development is located has different minimum lot sizes the smaller or smallest of those minimum lot sizes is used to determine the area clearing threshold.
Biodiversity Values Map threshold
The Biodiversity Values (BV) Map identifies land with high biodiversity value, as defined by clause 7.3(3) of the Biodiversity Conservation Regulation 2017. The Biodiversity Offsets Scheme applies to clearing of native vegetation and other biodiversity impacts prescribed by clause 6.1 of the Biodiversity Regulation 2017 on land identified on the map. Proposed development to be carried out on land that is added to the Biodiversity Values map does not exceed the Biodiversity Offsets Scheme threshold if:
- the land is the subject of a planning approval made up to 90 days after the land is added to the BV Map
- if the land was already the subject of a planning approval when the land was added to the BV Map.
Areas added to the BV Map in the last 90 days are shown in dark purple to distinguish them from areas that have been on the map longer than 90 days which are shown in light purple.
The BV Map can be viewed on the Biodiversity Values Map and Threshold (BMAT) Tool. The Tool also enables users to draw a polygon to represent the 'footprint' of their development proposal which means including all the land that would be cleared if the development is approved. The tool generates a report that states whether a development proposal occurs on land on the BV Map and if the Biodiversity Offsets Scheme is triggered.
The tool also determines the minimum lot size that applies to land on which development proposals are located based on the footprint drawn by users. This, and the relevant clearing area threshold (see table above), are included in the BMAT report. The Area Clearing Threshold Technical Explanation explains how the BMAT Tool determines the area clearing threshold. Currently the Tool is unable to determine the amount of native vegetation that would be cleared and if this exceeds the area clearing threshold that applies to the land on which the development proposal is located. The BMAT User Guide provides some guidance on how to estimate the area of native vegetation that would be cleared for a proposal to determine if this exceeds the area clearing threshold and triggers the Biodiversity Offsets Scheme.
The report can be supplied to councils along with the development application.
See the BMAT User Guide for more information. There is also a BMAT Tool demonstration video on how to use the Tool. The video is on the Local Government resources – Implementation support webpage under Biodiversity Offsets Scheme: Educational videos.
For more information on the BV Map, go to the Biodiversity Values Map webpage.
Threatened species ‘test of significance’
Proponents are also required to carry out a test of significance for all local development proposals that do not exceed the Biodiversity Offset Scheme Threshold.
The test of significance is intended to provide standardised and transparent consideration of threatened species, ecological communities, and their habitats, through the development assessment process.
In the context of a Part 4 development (not including major projects) if the test of significance assessment indicates that there will be a significant impact, the proponent must carry out a BAM assessment.
The outcomes of the assessment will be included in the Biodiversity Offsets and Agreements Method System (BDAR) and must be provided to the consent authority. The consent authority must consider the information in the BDAR when deciding whether to approve the development proposal and any appropriate conditions to mitigate the identified impacts.
The test of significance is also required to be applied for Part 5 activities. You can find out more information at Assessing biodiversity impacts of Part 5 activities.
Guidelines for how to apply the test of significance will be available shortly. In the meantime, the existing ‘7-part test’ guidelines will provide a useful reference to help interpret the factors of the test of significance.
Impacts below the Biodiversity Offset Scheme Threshold and ‘test of significance’
The environmental impact of development proposals that do not exceed the Biodiversity Offset Scheme Threshold and will not otherwise have a significant impact on biodiversity values as assessed by the test of significance will continue to be assessed under s 79C of the Environmental Planning and Assessment Act 1979.
Clearing of land in urban areas, RU5 and E2-E4 zones that does not require development consent and does not exceed the Biodiversity Offset Scheme Threshold will continue to be regulated by Councils under Development Control Plans pursuant to provisions in the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 similar to clause 5.9 of the Standard Instrument Local Environmental Plan.