Requests from consent authorities for Department of Planning, Industry and Environment concurrence to reduce a credit obligation can be submitted in all local government areas where the Biodiversity Offsets Scheme is operating.
Concurrence is required for a reduced credit obligation
If a consent authority 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.
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 consent authorities undermines the purpose of the Biodiversity Conservation Act 2016 and the integrity of the Biodiversity Offset Scheme. For this reason, routine discounting by a consent authority will not be supported.
The Department is committed to applying the new Biodiversity Offset Scheme and supporting the Biodiversity Conservation Act 2016, including the conservation of biodiversity at bioregional and state scales. The Biodiversity Offset Scheme 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 will the Department decide whether to grant concurrence?
The Biodiversity Conservation Act 2016 creates the framework for a decision to provide concurrence for a reduced credit obligation. When deciding whether to grant concurrence to an application for a reduced credit obligation, the Department considers the following factors:
- 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. Where 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 convinced 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 will consider 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 provide reasons. You must also demonstrate that your development delivers valuable community gain.
To apply for a reduced credit obligation, your development application must be accompanied by a letter providing the following detail:
- 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.
You must provide justification when seeking a reduced credit obligation detailing 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 application for a reduced credit obligation.
Your consent authority will consider whether to support your application for a reduced credit obligation. If your application is supported, the consent authority will seek concurrence from the Department.
A concurrence fee of $320 is payable to the Department of Planning, Industry and Environment when the consent authority makes an application for concurrence. In some local government areas, applications for concurrence will be lodged electronically using the NSW Planning Portal. The applicant will receive a notification requiring payment of the concurrence fee via the portal. Otherwise, seek advice from your consent authority about payment arrangements.
Information for consent authorities about requests for a reduced credit obligation
Applications for development consent may state an applicant is requesting a reduced credit obligation. A request for a reduced credit obligation must be made by letter and include the information outlined above.
The Department is to be advised within 10 days that a development application seeking a reduced credit obligation has been received.
Send your notice of a development application seeking a reduced credit obligation to firstname.lastname@example.org with a subject line including the local government area for the proposed development and must include all supporting information.
If a consent authority decides not to support a reduced credit obligation, the Department should be informed within 30 days of receipt of the development application.
If a consent authority intends to support a reduced credit obligation, a formal application for concurrence must be made to the Department within 30 days of receipt of the development application. The consent authority must justify their support for a reduced credit obligation in the application for concurrence.
A fee of $320, payable to the Department of Planning, Industry and Environment, is to accompany the request or the application will not be accepted. In some local government areas, applications for concurrence will be lodged electronically via the NSW Planning Portal. The applicant will receive a notification requiring payment of the concurrence fee via the portal. Applicants have otherwise been advised to contact the consent authority for advice on payment arrangements.
The Department may 'stop the clock' when asking for extra information from the applicant and/or consent authority. A formal request for additional information will be issued within statutory timeframes and will include the timeframe for return of the information.
The Department may consider applications for concurrence submitted outside of these timeframes. At least 28 days will be needed for the Department to consider applications for concurrence.
If at any point after the application is made, the consent authority decides not to support the reduced credit obligation, the consent authority must notify the Department.