By Ballanda Sack.
Key Points:
The Minister now has broad powers to exempt certain sites and/or activities from requiring the likely impact on threatened species, populations, ecological communities or their habitats to be assessed. Implementation of these powers will need careful monitoring to ensure they get the balance between development and conservation right.
Last year's wave of significant planning reforms in NSW was intended to provide greater certainty and efficiency within the development assessment process. A key feature of these changes was the creation of new powers for government to assess and determine certain planning approvals, subject to broad discretionary factors to provide greater flexibility in decision-making.
As part of this reform process, substantial changes were also made to the Threatened Species Conservation Act 1997 ("TSC Act") in October 2005 to facilitate strategic land-use planning and streamline the development assessment process. In particular, the Minister now has broad powers to exempt certain sites and/or activities from requiring the likely impact on threatened species, populations, ecological communities or their habitats to be assessed. It appears that the intention is to free up areas of lesser conservation value so that available resources can be dedicated to protecting and promoting more significant areas.
Three pathways for exemption
The TSC Act now provides three pathways for exemption from the requirement to assess the impact of development on threatened species, populations, ecological communities or their habitats under the Environmental Planning and Assessment Act 1997 ("Planning Act"):
- The Minister may confer "biodiversity certification" on an environmental planning instrument ("EPI"). If an EPI is certified, any development which is permissible with consent under Part 4 of the Planning Act and any activity to which Part 5 applies, is, as a result of that EPI, taken not to be likely to significantly affect any threatened species, population or community or its habitat (ie. no assessment of its actual impact will be required). An EPI may only be certified if the Minister is satisfied that the EPI will lead to an overall improvement or maintenance of biodiversity values (including threatened species, populations, communities or habitats). The Minister is also required to have regard to specific considerations such as the principles of ESD and the most efficient and effective use of available resources to protected threatened species.
Essentially, the intention is to allow development on areas with lesser conservation values to proceed without assessment whilst focussing resources on areas of higher conservation value. A thorough assessment of protected biodiversity values of the area to be covered by the EPI will be required prior to certification of the EPI. The DEC has also indicated that as part of the certification process it will be necessary for Councils to establish that active measures to protect areas of high conservation value will be taken.
A number of local councils are currently working with the DEC to obtain certification. The DEC has prepared guidelines for local councils which are expected to be released in three weeks. The certification of an EPI may last for up to 10 years and may apply to all or only some species and all or part of the land to which the EPI applies. Provision is made for the notification and suspension or revocation of biodiversity certification of an EPI and the Minister must review the biodiversity certification for an EPI if the land is rezoned or the EPI is otherwise reviewed under the Planning Act.
- Regulations may be made under the TSC Act which provide that development or an activity of a specified type does not constitute development that is likely to significantly affect threatened species, populations or communities or their habitats. Such a regulation will override the licensing provisions of the TSC Act and relevant provisions of Parts 4 and 5 of the Planning Act. The Minister must certify in writing that the development or activity is of minimal environmental impact on threatened species, populations, communities or their habitats before such a regulation may be made.
- The Minister has by order effective from 1 December 2005 conferred biodiversity certification on the "native vegetation reform package" (comprising the Native Vegetation Act 2003 and various standards, targets, guidelines and protocols adopted under the Natural Resources Commission Act 2003, Catchment Management Authorities Act 2003 or Native Vegetation Act 2003 or their regulations) except to the extent it applies to "private native forestry". As a result, the clearing of native vegetation that requires development consent under the Native Vegetation Act does not require the preparation of a species impact statement (except if it relates to private native forestry). In addition, if the clearing is authorised by a property vegetation plan under the Native Vegetation Act, then that will provide a defence to certain offences under the National Parks and Wildlife Act.
Other key changes are:
- Co-ordination and prioritisation of recovery plans: Currently over 830 species, 30 populations, 70 ecological communities and 25 threatening processes have been identified and listed under the TSC Act. The TSC Act now provides for the preparation of a Priorities Action Statement ("PAS") to co-ordinate and provide for the integrated preparation and implementation of recovery and threat abatement strategies to be adopted for each threatened species. The PAS will include specific action plans and strategies for each listed species, population or ecological community. In particular, the PAS will establish relative priorities for the implementation of these strategies and will establish performance indicators, reporting requirements and timetables for recovery and threat abatement planning and achievement. A draft PAS has been prepared and is on public exhibition until 18 August 2006.
- Accreditation of consultants: A scheme for the accreditation of consultants is currently being finalised, public comment has been taken and the scheme is anticipated to be in force by the end of the year. The scheme is intended to improve the overall standard of threatened species and biodiversity survey and assessment in NSW.
- Listing process: A more rigorous listing process has been introduced and the Scientific Committee is now required to base listing decisions on criteria consistent with those used by the Commonwealth Government and the World Conservation Union (IUCN). In addition, two new listing categories "critical endangered species and ecological communities" and "vulnerable ecological communities" have been introduced.
- Enforcement: Landowners will be presumed to have committed or permitted threatened species offences occurring on their land and will be presumed to know of the existence of critical habitat on their land. Authorised officers may now use the investigative powers under the Protection of the Environment Operations Act 1997 to investigate breaches of the TSC Act and National Parks and Wildlife Act.
The 8 Part test has now also been replaced by a new "Assessment of Significance" as a result of amendments to section 5A of the Planning Act effective in October 2005. A working draft of the Threatened Biodiversity Survey and Assessment: Guidelines for Developments and Activities was prepared by the DEC in November 2004 but has still not been finalised.
Conclusion
The reforms to the TSC Act provide a powerful mechanism for streamlining assessment requirements and co-ordinating strategies to more effectively protect and enhance threatened species, populations, ecological communities, and their habitats.
The implementation of these reforms will need to be carefully monitored to determine whether they provide an efficient mechanism for limiting unnecessary assessments while protecting core biodiversity values and outcomes.
For further information, please contact Ballanda Sack.
