Applying for a clause 34A certification

Providing guidance on the process for recognising offset arrangements made before the commencement of Part 7 of Biodiversity Conservation Act 2016 (BC Act).

The information on this page relates specifically to the power of the Secretary of the Department of Planning, Industry and Environment to assess and certify proposed development under clause 34A of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (BC S&T Regulation).

The intent of clause 34A is to recognise past offsetting agreements and shield subject development from new biodiversity assessment and approval provisions under Part 7 of the BC Act.

Legislative changes

The BC Act commenced in August 2017 and changes the way proponents must assess the biodiversity impacts of projects.

To recognise past offset arrangements established under previous legislation, transitional provisions are included under clause 34A the BC S&T regulation. When a development is certified under clause 34A(4) it does not need assessment for biodiversity impacts under the BC Act. Instead, assessment under the former planning provisions continues to apply.

Diagram showing the Legislative changes made for the commencement of the Biodiversity Conservation Act, 2017 

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 EP&A Act (c34A (3)) and proposed development where impacts were previously assessed and offset as part of a relevant planning arrangement (c34A (4)). This guidance relates to the Secretary's powers under clause 34A (4) – relevant planning arrangements.

A relevant planning arrangement is an agreed planning arrangement associated with the making of an environmental planning instrument or development control plan under the EP&A Act (the Act) where proposed development has previously assessed biodiversity impacts and where conservation measures to offset residual impacts have been secured into the future. This includes a grant of concurrence under the Act or any other application or request under the Act.

Criteria for eligibility

To obtain certification under clause 34A(4) an applicant must clearly show that the proposed development meets the following requirements:

  • The biodiversity impacts of the proposed development were satisfactorily assessed before the commencement of the Act as part of a relevant planning arrangement.
  • 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.

Offsets can be secured into the future by a variety of legal mechanisms, for example, voluntary planning agreements, land dedications to state or local government or 'otherwise', for example, an in-perpetuity conservation mechanism such as a Biobanking Agreement (BBA), a Biodiversity Stewardship Agreement (BSA) or another type of conservation agreement. To be considered under clause 34A, an offset must be legally secured and protected from changes in land use or any potential for development impact.

The table below sets out the information requirements for an application for certification in accordance with clause 34A.

Name and details of the proponent or consultant acting on behalf on the applicant.

Lot and DP details of land subject to the development and relevant planning arrangement (including maps).

For consultants acting on behalf of a client – a signed letter from the proponent granting permission to seek certification on their behalf.

Clause 34A criteria 

Clause 34A information 

Documentation (where relevant)
Proposed development 
  • Provide a description of the proposed development and specify if the application requests certification of a single DA or all future and pending development applications. 
  • Maps of the proposed development, subdivision plans, development consents and any previous approvals, proposals or, in the case of a staged development, details of completed and pending development. 
Biodiversity impact assessment 
  • Demonstrate that the biodiversity impact assessment was completed satisfactorily before commencement of the BC Act.
  •  Previous biodiversity assessment reports.
Relevant planning arrangement 
  • Demonstrate that the biodiversity impact assessment was done as part of the relevant planning arrangement.
  • Describe how the biodiversity offsets have been secured into the future.
  • Details, documentation, and/or legal instruments showing the relevant planning arrangements.
  • Legal documentation demonstrating the mechanism that secures offsets.
     
    •  Describe the status of the offsets (enacted or agreed).
    		  
    • Documentation showing the status of the offset mechanisms.
     
    • Where relevant, if the planning arrangement is secured by a planning agreement.
    • Include details regarding the proposed management of the offsets.
    		  
    • Planning Agreement.
    • Management Plan/Management funding for the offsets.
    Department involvement 

    Where relevant, details of Department involvement into one or more of:

    • the biodiversity impact assessment
    • the relevant planning arrangement
    • design or arrangements for secured offsets.
    • Documentation showing previous Department involvement and/or government support for the relevant planning arrangements and offsets.

    What is the effect of a clause 34A certification?

    If a clause 34A certification has been granted, it is required that the biodiversity impacts of development are assessed as they would have been prior to 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). Where 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 which are referred to as the Chief Executive Requirements (CERs).

    SIS concurrence

    Under a clause 34A certification, where an SIS has been requested, 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.

    How to apply?

    Proposed development that is part of a relevant planning arrangement

    To request certification under clause 34A (4) for relevant planning arrangements, apply in writing to the Secretary of the Department of Planning, Industry and Environment via the bam support mailbox: bam.support@environment.nsw.gov.au.

    The Department will firstly review the application and advise if there are any issues that could prevent or delay the assessment and decision regarding the application. This includes routine consultation with local council and other Department staff.

    Proposed development that is part of a previous concept plan approval (Part 3A)

    To request certification under clause 34A (3) for concept plan approvals, apply in writing to the Secretary of the Department of Planning, Industry and Environment at information@planning.nsw.gov.au.

    Questions and answers

    If a certification is granted under clause 34A, a development application will not require assessment under Part 7 of the Biodiversity Conservation Act 2016 (BC Act). Instead, the former planning provisions will apply with respect to biodiversity assessment. Therefore, you would need to submit the development application with the same biodiversity information that would have previously been required prior to the commencement of Part 7 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. In the case that a significant impact is determined, a species impact statement (SIS) will be required according to the provisions under the now repealed Threatened Species Conservation Act 1995 (TSC Act). Concurrence will be considered by the Department according to section 79B of the Environmental Planning and & Assessment Act 1979 as though it had not been repealed.

    Proposed development is development that is subject to a development application (DA) under Part 4 of the EP&A Act, including modifications to a development consent, or development (including major projects) that are subject to future or pending DAs.
    If you are unsure whether a proposed development is eligible for certification under clause 34A, we recommend that you can make an inquiry to the BAM support mailbox. This will enable the Department to review the proposed development with respect to the requirements under clause 34A and if required to consult local council and seek expert input to determine whether clause 34A application is appropriate.
    No. Clause 34A (5) specifies that proposed development that is eligible for certification, may either be the subject of a specified development application or the subject of all or any pending or future development applications that are part of a relevant planning arrangement or concept plan approval.
    For the purposes of a clause 34A certification, conservation measures are those elements of the relevant planning arrangement that offset the residual impacts to biodiversity, after measures have been taken to avoid and minimise impact.
    Conservation measures are secured by legally binding mechanisms, be that a planning agreement, land reservation or otherwise. This may include, for example, land dedication or a conservation agreement that provides for protection in perpetuity.
    If an application for certification appears to fall within a broader planning arrangement that meets the provisions of clause 34A (4), the Department may extend the scope of assessment to the entire area subject to the relevant planning arrangement, offsets and previous biodiversity impact assessment.
    A satisfactory assessment of biodiversity impacts means that residual impacts for proposed development have been adequately assessed and are consistent with the relevant planning arrangements and the conservation measures that offset impacts.
    Where a clause 34A certification has been issued, planning authorities will assess the biodiversity impacts of a proposed development as they would have prior to the introduction of Part 7 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 habitat in accordance with the now repealed section 5A of the EP&A Act (7-part test). Where a significant impact is determined by the planning authority, an SIS will be required and the proponent will request the environmental assessment requirements from the Department. The Department will consider previous offsets on a case by case basis when preparing the environmental assessment requirements for the SIS.