Biodiversity reform: your questions answered

We have identified some common questions asked by councils about the biodiversity reforms and our answers are below.

How is the area of clearing calculated for the purposes of deciding whether the Biodiversity Offset Scheme threshold is triggered?

The Biodiversity Values Map and Threshold Tool User Guide explains how to determine the footprint of clearing.  

Vegetation maps are not yet available to include in the Biodiversity Values Map and Threshold Tool. The User Guide provides guidance for how to calculate clearing for the purposes of determining whether the Biodiversity Offset Scheme is triggered.  In the first instance, it is recommended that you contact your council for suitable local mapping.

How is the area of clearing calculated for the purposes of determining whether the Biodiversity Offset Scheme threshold is triggered in the case of subdivision development applications?

When applying the area clearing threshold, subdivision development applications need to consider the clearing of native vegetation that, in the opinion of the consent authority, is required or likely to be required for the purposes for which the land is to be subdivided. 

Guidance for calculating the area of clearing for the purposes of determining whether the Biodiversity Offset Scheme is triggered is provided in the Biodiversity Values Map and Threshold Tool User Guide.

When the actual lot size is smaller than the minimum lot size, which is used to calculate whether the area clearing threshold has been triggered?

The minimum lot size is used for the calculation. Note that the threshold determines the pathway for approval and is not itself an approval to clear.  

When a lot covers more than one zone and has different minimum lot sizes, which is used to calculate whether the area clearing threshold has been triggered?

The smaller of the minimum lot sizes is used to calculate whether the area clearing threshold has been triggered.

When there is no minimum lot size, what is the clearing threshold based on?

Where there is no minimum lot size the clearing threshold will be based on the smallest actual lot size associated with the development.

How is clause 7.3(4) of the Biodiversity Conservation Regulation 2017 applied in determining whether the Biodiversity Offset Scheme threshold is triggered?

Clause 7.3(4) of the Biodiversity Conservation Regulation 2017 (BC Regulation) provides that a proposed development (other than subdivision) does not trigger the Biodiversity Offsets Scheme due to the biodiversity values map if carried out on a lot that was the result of a subdivision carried out before the commencement of the Act within land zoned R1 to R4, RU5, B1 to B8 or IN1 to IN3. The other elements of the Biodiversity Offsets Scheme threshold must still be considered in determining whether the proposed development will trigger the Biodiversity Offsets Scheme.

This clause applies in circumstances where subdivision approval has been granted on land within the nominated zones and the purpose of the approved subdivision has not yet been realised. Councils will confirm if a subdivision approval has been granted in an appropriate zone and if the purpose of the subdivision has not yet been realised. Council will also confirm that a proposed development is consistent with the purpose of the approved and unrealised subdivision.

Clause 7.3(4) is not to be applied when determining whether the biodiversity values map applies under the Vegetation SEPP (Clause 4(1)).

How are cumulative impacts considered in the threshold?

The biodiversity offset scheme integrates with the assessment and approval framework under the Environmental Planning and Assessment Act 1979 (EP&A Act). As is currently the case, developers will identify the activity to be approved in a development application. Each application will continue to be considered on its merits and the threshold will be applied independently for each application.

The Biodiversity Conservation Act 2016 (BC Act) and the Biodiversity Offset Scheme do not limit council’s ability to consider the biodiversity impacts of any development application. Council retains the ability to refuse development applications on biodiversity grounds. Contribution to cumulative impacts across the landscape may be considered in this context.

On an annual basis, the Department of Planning, Industry and Environment collects and analyses spatial data for the purposes of monitoring vegetation clearing. This information could be made available to councils for monitoring at the local government area (LGA) level if desired.

Does the Biodiversity Assessment Method apply to developments on category 1 land (as per Part 5A Local Land Service Act 2013)?

Sometimes. Clearing of native vegetation on land that meets the definition of category 1 land (under the Local Land Services Act 2013 (LLS Act)) does not require assessment or offsetting under the Biodiversity Assessment Method (BAM) (under the BC Act). In practice, this means that native vegetation on category 1 land is not included in any area clearing calculations when deciding whether a biodiversity development assessment report should be prepared.

A development on category 1 land may involve other biodiversity impacts for which a biodiversity development assessment report will still be required:

  • The development will have a prescribed impact on land mapped on the biodiversity values map (prescribed impacts are listed in clause 6.1 of the BC Regulation), not including native vegetation clearing associated with the prescribed impact.
  • A test of significance finds that a significant impact on threatened species, ecological communities or their habitats is likely to result from the proposed development.

While the Native Vegetation Regulatory Map is being finalised, landowners will be responsible for determining the categorisation of their land, in accordance with the LLS Act.

This is set out on the Local Land Services website.

If you would like more information about this process, you can view the Local Land Services website or contact a member of the Local Land Services team.

For developments occurring on rural land (not including RU5 land), the Department is recommending to accredited assessors that they first establish whether land is category-1 – exempt land. An application for planning approval submitted to a consent authority should clearly indicate the area of land determined to be category 1 – exempt land.

If the Biodiversity Offset Scheme applies to the proposal, impacts on additional biodiversity values prescribed in the regulation need to be assessed in the category 1 area. Requirements for assessment of impacts on prescribed biodiversity values are set out in the BAM. Prescribed impacts are listed in clause 6.1 of the BC Regulation.

Consent authorities can expect that the biodiversity development assessment report will only contain information relevant to prescribed impacts for category 1 land. Impact assessment and offset calculations relating to vegetation integrity and habitat suitability are not required. 

How does 'opting in' to the Biodiversity Offset Scheme work for Part 5 developments?

Under the Biodiversity Conservation Act 2016 (BC Act) participation in the Biodiversity Offset Scheme is optional for Part 5 activities.

If an activity is likely to significantly affect threatened species, a species impact statement or, if the proponent so chooses, a biodiversity development assessment report is to accompany the environmental assessment of the activity. A proponent ‘opts in’ to the biodiversity offset scheme by electing to prepare a biodiversity development assessment report.  Where a biodiversity development assessment report is prepared, concurrence is not required from the Environment Agency Head (EAH).

A Part 5 activity is likely to significantly affect threatened species if:

  • it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in s.7.3 of the BC Act
  • it is carried out in a declared area of outstanding biodiversity value.

Note that the biodiversity offset scheme threshold does not apply in a Part 5 context.

Unless the activity is taking place within an area of outstanding biodiversity value (in which case the activity is automatically considered likely to significantly affect threatened species), the process would be that a test of significance is prepared as per s.7.3 of the BC Act. If a significant impact is likely the proponent may choose to prepare a biodiversity development assessment report and calculate a credit obligation using the Biodiversity Assessment Method rather than prepare a species impact statement and seek concurrence. If opting in, the biodiversity development assessment report would form part of the environmental impact assessment for the activity.

There is no requirement to apply the Biodiversity Assessment Method should a proponent not elect to prepare a biodiversity development assessment report.

Can council require a development application to be assessed under the Biodiversity Offset Scheme where unlawful clearing has been undertaken and reduced the footprint for the purposes of calculating the area clearing threshold?

No.

The unlawful clearing should be dealt with as a compliance matter.

How are biodiversity impacts assessed if the Biodiversity Offset Scheme does not apply?

The development application will be assessed in accordance with standard procedures under s.79c of the Environmental Planning and Assessment Act 1979 (EP&A Act). The EP&A Act requires consideration of the likely impacts of a development, including the environmental impacts on the natural environment when evaluating a development application.

A test of significance should have been prepared in order to determine that the Biodiversity Offset Scheme does not apply. This test will form part of the documentation that accompanies a development application. If a test of significance is not prepared, the development application must be accompanied by a justification for the exclusion of species from consideration in a test of significance, in accordance with the Threatened Species Test of Significance Guidelines. The development application should also be accompanied by evidence that the Biodiversity Offset Scheme thresholds have not been triggered.

Are impacts on the Saltmarsh Endangered Ecological Community assessed under the Biodiversity Conservation Act 2016 and the Biodiversity Assessment Method?

Yes. If vegetation clearing will impact on the Saltmarsh Endangered Ecological Community (EEC) and a biodiversity development assessment report is being prepared, the impacts will be assessed using the Biodiversity Assessment Method (BAM).

Any vegetation that is a part of a threatened ecological community is protected by offences relating to threatened ecological communities in the BC Act. If removal of vegetation will impact on Coastal Saltmarsh EEC, an authority to remove vegetation would be required. Division 2 of the BC Act outlines the forms of authority that provide a defence to offences.

As a consent authority, we receive the auto-generated Biodiversity Assessment Method reports (e.g. Biodiversity Credit Report) attached to the Biodiversity Development Assessment Report. How do we know that the report submitted is the final report?

A BAM-C assessment must be finalised in the Biodiversity Offsets and Agreement Management System (BOAMS) prior to submission to the consent authority. If the case has been finalised, the auto-generated report 'BAM Biodiversity Credit Report (Like-for-like)' from the BAM-C will list the BAM Case Status as 'Finalised' and include the date the case was finalised.

Refer to BAM Support Webinar 3 – BOAMS and BAM-C Systems Support (slide 20, 'Credit reports').

How is the Development Control Plan empowered to regulate vegetation clearing?

Where the Vegetation SEPP applies and the Biodiversity Offsets Scheme does not apply, vegetation clearing activities are managed locally by councils.

Previously, councils relied on clauses 5.9 and 5.9AA of the Standard Instrument – Principal Local Environmental Plan and the Native Vegetation Act 2003 (NV Act) to manage local vegetation. The NV Act was repealed by the Local Land Services Amendment Act 2016.

The Vegetation SEPP has substantially reproduced the effect of clauses 5.9 and 5.9AA, allowing councils to continue to regulate clearing of native vegetation through their development control plan (DCP). Existing DCPs that prescribe vegetation for the purposes of clauses 5.9 and 5.9AA will continue to have effect.

Does Council's development control plan regulate vegetation clearing?

Council has a development control plan that requires a permit for clearing threatened species, threatened ecological communities and protected plants not associated with development consent

Clearing of native vegetation that exceeds the biodiversity offset scheme threshold will require approval from the Native Vegetation Panel or delegate.

For clearing that does not exceed the biodiversity offset scheme threshold, council can continue to regulate the clearing of native vegetation that is not authorised by a development consent through using their existing DCP and permits issued under the Vegetation SEPP.

Council has a development control plan that requires development consent for clearing threatened species, threatened ecological communities and protected plants that are not associated with another activity requiring development consent

Clearing of native vegetation that exceeds the Biodiversity Offsets Scheme thresholds will require approval from the Native Vegetation Panel or delegate.

For clearing that does not exceed the Biodiversity Offsets Scheme threshold, if council has a DCP that requires development consent for clearing of native vegetation, these activities may be regulated by the issue of a permit instead. Any relevant reference in the DCP to a development consent should be read as a reference to a permit. No immediate update to the DCP is required to enable council to regulate these activities; however, an update in the near future is recommended to reflect the new regulatory regime.

If council is making a new DCP, they can no longer require development consent for clearing of native vegetation that is not associated with another activity requiring development consent.

Council has no development control plan regulating clearing of threatened species, threatened ecological communities and protected plants

Clearing of native vegetation that exceeds the Biodiversity Offsets Scheme thresholds will require approval from the Native Vegetation Panel or delegate.

Clearing of threatened species, threatened ecological communities and protected plants that does not exceed the Biodiversity Offsets Scheme threshold cannot be regulated by council.

For clearing of threatened species, threatened ecological communities or protected plants there will be no defence to the relevant offence of picking plants in the BC Act. Persons desiring to gather, take, cut, remove from the ground, destroy, poison, crush or injure the plant or any part of a threatened species, ecological community or protected plant that does not require authorisation from council will need to seek a biodiversity conservation licence or another defence to lawfully undertake these actions. Biodiversity conservation licences are issued by the Department of Planning, Industry and Environment and further information is available on our Licence to harm a threatened species or ecological community webpage.

Council may amend their DCP to regulate the clearing of all threatened species, threatened ecological communities or protected plants that do not require approval of the Native Vegetation Panel if they choose to.

Council has a development control plan that requires a permit or development consent for clearing of some but not all threatened species, threatened ecological communities or protected species

Clearing of native vegetation that exceeds the Biodiversity Offsets Scheme thresholds will require approval from the Native Vegetation Panel or delegate.

For clearing that does not exceed the Biodiversity Offsets Scheme threshold, council can continue to regulate the clearing of native vegetation (that is not associated with a development consent) as prescribed by the DCP using their existing DCP and permits issued under the Vegetation SEPP.

For clearing of threatened species, threatened ecological communities or protected plants that are not regulated by the DCP, there will be no defence to the offence of picking plants in the BC Act. Persons desiring to gather, take, cut, remove from the ground, destroy, poison, crush or injure the plant or any part of a threatened species, ecological community or protected plant that does not require authorisation from council will need to seek a biodiversity conservation licence or another defence to lawfully undertake these actions. Biodiversity conservation licences are issued by the Department and further information is available on our Licence to harm a threatened species or ecological community webpage.

Council may amend their DCP to regulate the clearing of all threatened species, threatened ecological communities or protected plants that do not require the approval of the Native Vegetation Panel if they choose to.

Council has a development control plan that requires a permit or development consent for vegetation clearing, but does not regulate native vegetation clearing in E zones and R5 zones due to reliance on the now repealed Native Vegetation Act 2003

Clearing of native vegetation in E zones or R5 zones that exceeds the Biodiversity Offsets Scheme thresholds will require approval from the Native Vegetation Panel or delegate.

Clearing of native vegetation that does not exceed the Biodiversity Offsets Scheme threshold cannot be regulated by council.

For clearing of threatened species, threatened ecological communities or protected plants that are not regulated by the DCP, there will be no defence to the offence of picking plants in the BC Act. Persons desiring to gather, take, cut, remove from the ground, destroy, poison, crush or injure the plant or any part of a threatened species, ecological community or protected plant that does not require authorisation from council will need to seek a biodiversity conservation licence or another defence to lawfully undertake these actions. Biodiversity conservation licences are issued by the Department and further information is available on our Licence to harm a threatened species or ecological community webpage.

Note this also applies to transitional allowable activities which do not require a permit under the Vegetation SEPP for the first 12 months. In E zones and R5 zones, persons desiring to gather, take, cut, remove from the ground, destroy, poison, crush or injure the plant or any part of a threatened species, ecological community or protected plant that does not require authorisation from council will need to seek a biodiversity conservation licence or another defence to lawfully undertake these actions.

Council may amend their DCP to regulate the clearing of all threatened species, threatened ecological communities or protected plants that do not require the approval of the Native Vegetation Panel if they choose to.

Vegetation clearing, damage to habitat and harm to animals

Vegetation clearing that receives a permit or approval under the Vegetation SEPP will have a defence to the 'picking plants' offence in the BC Act. As outlined above, there are some circumstances where a DCP cannot or does not give authority to vegetation clearing actions.

It is also an offence to damage the habitat of a threatened species or ecological community or cause harm to an animal that is a threatened species, part of a threatened ecological community or a protected animal without an authority. If damage to habitat and harm to animals is the direct result of vegetation clearing authorised under the Vegetation SEPP, there will be a defence to these offences.

If you cause harm to habitat or an animal beyond what is authorised under the Vegetation SEPP, there will be no defence to these offences. A biodiversity conservation licence or another defence will need to be obtained to lawfully undertake these actions. This includes scenarios where the DCP cannot or does not give authority to vegetation clearing actions.

Biodiversity conservation licences are issued by the Department and further information is available on our Licence to harm a threatened species or ecological community webpage.

Where does the power for a consent authority to enforce the avoid, minimise, offset hierarchy reside?

The consent authority’s decision to approve or refuse a development is still made in accordance with s.79C of the Environmental Planning and Assessment Act 1979 (EP&A Act). Site suitability is a relevant consideration.  Efforts to avoid and minimise impacts may be considered in this context. 

The Biodiversity Assessment Method (Ch. 8) requires that proponents document their efforts in the biodiversity development assessment report, to ensure that this information is before the consent authority.

As is currently the case, the consent authority will weigh up environmental, social and economic impacts in the decision making process. 

The Biodiversity Conservation Act 2016 (BC Act) s.7.13(6) allows the consent authority discretion over what measures are required in relation to avoiding and minimising impacts. 

Can a consent authority refuse a development application on biodiversity grounds when the Biodiversity Offset Scheme applies?

A consent authority’s decision to approve or refuse a development is still made in accordance with s.79C of the EP&A Act. 

The BC Act s.7.13(6) and the Biodiversity Offset Scheme does not limit the ability of the consent authority to require additional measures in relation to avoiding and minimising biodiversity impacts or to refuse an application on the basis of those impacts.

When a proponent proposes to fund a biodiversity action as part of their offset, how is compliance demonstrated?

To fund a biodiversity action, the proponent must confirm with the Department that the action has not been completed. Council will be required to identify the biodiversity action and the credit obligation it relates to in conditions of consent.

Funding for the biodiversity action is to be paid to the Department. The proponent demonstrates compliance by providing evidence of this payment to Council.

Will councils be advised when an application for a Biodiversity Stewardship Agreement is received for their LGA, so they are able to confirm that the land is not already the subject of an offset requirement?

Yes.

Landholders and/or accredited assessors will contact the relevant local council to confirm if the land is not already the subject of an offset requirement. The NSW Biodiversity Conservation Trust (BCT) will review the council response as part of the eligibility and due diligence checks of the Biodiversity Stewardship Agreement (BSA) application.

Further information can be found in the BCT BSA Application Supporting Document Guidance.

Will councils be notified when a Biodiversity Stewardship Agreement within their local government area is made?

Yes.

The BCT will inform the relevant council when a BSA is established in their local government area. The BCT sends a notification letter to the council following registration of the BSA on the land title. This includes a request that the council update the relevant planning certificate to note the presence of the BSA.

Can public land that is already managed for conservation be placed under a Biodiversity Stewardship Agreement?

Yes.

Land that is already under legal obligation to carry out biodiversity conservation measures is not eligible to become a Biodiversity Stewardship Site unless the obligation was not created for biodiversity offset purposes. A government or statutory agency that imposed the legal obligation or administers the provisions can advise in writing that the legal obligation was not created for biodiversity offset purposes.

Management of public land that is classified as a Natural Area under the Local Government Act 1993 does not fall within the definition of an offset arrangement. However, being subject to ongoing biodiversity management measures, the amount of gain attributed to the establishment of a Biodiversity Stewardship Site may be reduced. Therefore, the Biodiversity Stewardship Site may generate fewer credits than unmanaged land.

Who funds local council rate relief for conservation agreements?

Land owners who enter into conservation agreements under the Biodiversity Conservation Act 2016 (BC Act) will also be eligible for council rate relief under certain circumstances. Similar arrangements exist for conservation agreements entered into under previous legislation. Note this does not apply to biodiversity stewardship agreements.

The rate relief provisions do not reduce council’s overall rate entitlement. Councils may recover the loss of revenue associated with rate relief by redistribution across the local government area.

Are there circumstances where a Biodiversity Conservation Licence (previously referred to as s.91 licences or wildlife licences) may be required in relation to clearing of native vegetation?

Yes. There are some cases where clearing of native vegetation is not afforded protection against the offences in the BC Act. A Biodiversity Conservation Licence is an alternative way of receiving authorisation for the clearing.

This applies to clearing of threatened species, ecological communities or protected plants that does not require authorisation under the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP), including:

  • clearing of threatened species, ecological communities and protected vegetation that is a risk to life and property
  • clearing of threatened species, ecological communities and protected vegetation under the transitional allowable activities in R5 and E zones
  • where a DCP does not require a permit for the clearing activity.

Where damage to the habitat of a threatened species or ecological community, or harm to an animal, is not or cannot be authorised under the Vegetation SEPP, a biodiversity conservation licence or another defence will need to be obtained to lawfully undertake these actions.

Biodiversity conservation licences are issued by the Department of Planning, Industry and Environment and further information is available on our Licence to harm a threatened species or ecological community webpage.

For more detail on the relationship between DCPs and Biodiversity Conservation Licences, read about Development Control Plans and the Vegetation SEPP.

Can councils propose biodiversity actions?

Yes.  

Councils can propose biodiversity actions to the Department.  

The Department would consider whether to list that action within the ancillary rules document.

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