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.
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.
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.
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).
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: email@example.com.
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 firstname.lastname@example.org.
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