Ready or not: Time to transition to the new biodiversity conservation framework for NSW

By Nick Thomas, Tom Dougherty

14 Sep 2017

Developers have a window of opportunity to select whether the biodiversity offset obligations for their developments will be assessed under the new offsets scheme or the former offsets scheme, under the extensive transitional arrangements.

On 25 August 2017, the long-awaited biodiversity conservation reforms commenced in NSW under the Biodiversity Conservation Act 2016 and other legislative instruments, including the Biodiversity Conservation (Savings and Transitional) Regulation 2017.

We have examined the nature and scope of these reforms in a separate article, focusing on the introduction of a new Biodiversity Offsets Scheme and the Biodiversity Conservation Trust.

To assist with the move to the Scheme, and following discussions with a range of stakeholders, the Government has provided extensive transitional arrangements in the Transitional Regulation.

This is particularly important because the effect of the new Scheme, as compared with the former biobanking offsets scheme under the (now repealed) Threatened Species Conservation Act 1995, is yet to be worked out, but it has been suggested that the offset requirements under the new Scheme are substantially higher for many kinds of projects than they were under the former biobanking scheme.[1]

While many of the transitional arrangements are quite detailed, we have provided a simplified overview below. The detail of the transitional arrangements should be considered for each development before decisions about specific developments are made.

Local developments

A development application (DA) or modification of a development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (Planning Act) (excluding major projects) may utilise the former TSC Act scheme for biodiversity offsets if the application is lodged within three months of 25 August 2017, or 12 months in some local government areas (LGAs).

Major projects

For major mining projects where a conceptual project development plan was submitted prior to 25 August 2017, a proponent may have up to two years to submit an application for planning approval and utilise the former TSC Act scheme for biodiversity offsets. However, the Secretary of the Department of Planning and Environment (DPE) must confirm lodgement of the conceptual plan prior to 25 August 2017 within three months of that date.

For other major projects, an application for planning approval (or modification of a planning approval) may be submitted within 18 months after 25 August 2017 and utilise the former TSC Act scheme for biodiversity offsets, where the DPE Secretary's environmental assessment requirements (SEARs) have been issued, or substantial environmental assessment has been undertaken, in connection with an environmental impact statement prior to 25 August 2017.

DP&E also has the discretion to extend these deadlines for major projects by up to three years from 25 August 2017 if SEARs are reissued and an application for planning approval is lodged within 18 months after that.

Applications for former biobanking agreements

An application to enter into a biobanking agreement under the former TSC Act (with the associated former assessment method for credits) may be lodged within 6 months after 25 August 2017, if:

  • the Minister is satisfied that the relevant biodiversity assessment for the proposed biobank site was collected prior to 25 August 2017; and
  • the biobanking agreement is finalised and signed by all parties within 18 months of 25 August 2017.

Any such agreement will be taken to be a biodiversity stewardship agreement under the Biodiversity Act once executed.

Outstanding details

Proponents should be aware that transitional arrangements under the new Scheme have not been fully developed and, in some cases, NSW Office of Environment and Heritage (OEH) should be approached directly for further information.

We expect that OEH and the newly established Biodiversity Conservation Trust will provide further guidance on a number of key scenarios, including:

  • when outstanding biodiversity credits required by a planning approval condition are to be retired under the former TSC Act scheme;
  • when unsold biodiversity credits generated by a biobanking agreement under the former TSC Act scheme exist;
  • when a stakeholder holds credits bought from the public register under the former TSC Act; and
  • when an old private land conservation exists and a landowner may wish to upgrade to a biodiversity stewardship agreement (BSA). Existing biobanking agreements will be managed under the Biodiversity Act as biodiversity stewardship agreements and any upgrade must meet eligibility criteria under the new Scheme.

In particular, for the scenarios outlined above, it is currently unclear whether biodiversity credits generated from biobank sites under the former TSC Act are equivalent to biodiversity credits created from a biodiversity stewardship site under the new Biodiversity Act (ie. will the same number and type of credits be recognised?). For example, OEH has indicated that the new Biodiversity Assessment Method may reduce the number of credits that may be generated from an upgrade to a BSA.

Due to the breadth of the biodiversity reforms, the extent of impact on proposals that have not been lodged, or have been lodged by not yet determined, is not yet clear. As soon as possible during this transitional period, developers and other key stakeholders should seek advice in relation to any proposed activities that may impact on biodiversity values in NSW.

[1] See, for example, " ‘Green tax’ will push up prices of new properties by $20,000", Daily Telegraph, 26 July 2017 (accessed 13 September 2017).Back to article

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.