Avoid a bad BDAR, a bad DA and a bad day: demonstrating avoidance of biodiversity impacts for NSW development proposals

By Nick Thomas, Wagih Doueihi and Sam Wicks
30 Sep 2021
While the current focus is on biodiversity offsets, the NSW Land and Environment Court has sent a powerful reminder of the need to properly assess the potential to avoid a development proposal's biodiversity impacts in order to get development approval.

Proponents of development in NSW need to demonstrate that they have addressed the potential to avoid the biodiversity impacts of their development proposals, if they are to obtain development approval. That is a key message from the NSW Land and Environment Court, in the decision of Sandy Outlook Pty Ltd v. Ku-ring-gai Council [2021] NSWLEC 1519.

Proponents should be careful, when preparing their development applications (DAs), not to fall into the trap of conflating "avoidance" with "mitigation" or "offsets". A conclusion that ecological impacts are "unavoidable" or have been avoided as far as practicable must be supported by thoughtful assessment and verifiable analysis.

The development proposal and biodiversity assessment

The proponent of a residential subdivision appealed to the Court against the local council's refusal of its DA on the basis that the Biodiversity Development Assessment Report (BDAR) accompanying the DA did not adequately demonstrate that biodiversity impacts had been "avoided".

The subdivision proposal involved the clearing of 82 trees, some of which form part of two Critically Endangered Ecologically Communities (CEECs).

The proposed development site is classified as "bushfire prone land", which means that a bushfire safety authority (BFSA) from the NSW Rural Fire Service (RFS) is required for residential subdivision. The proponent obtained the RFS' approval on the basis that specified clearing and maintenance actions were carried out, including the removal of the 82 trees. The proponent submitted in Court that the requirements for a BFSA "provided the fundamental rationale for the subdivision proposal" (according to the Court's reasons for judgment).

The relevant local environmental plan (LEP) prohibited the grant of development consent for subdivision unless the consent authority (in this case, the local council) was satisfied that the proposal had been designed, and would be sited and managed, to avoid any potentially adverse environmental impact or, if that cannot be done, that other specified biodiversity impact mitigation measures and outcomes were provided.

Although the BDAR contained measures which were designed to mitigate ecological impacts, it did not identify any measures which had been taken to design the proposed development so that it would avoid impacts to biodiversity values generally, or to the CEECs specifically. Instead, the BDAR asserted that direct impacts to biodiversity were "considered unavoidable".

Avoid, mitigate, offset

Drawing on earlier case law, the Court indicated that both the BC Act and Government policy established a clear biodiversity impact management hierarchy of "avoid, mitigate, offset". Avoidance and mitigation measures should be the primary strategies for managing the potential adverse impacts of a project. These should reduce the scale and intensity of a project's potential impacts. Offsets are then used to address the impacts which remain after avoidance and mitigation measures have been put in place.

The BC Act requirement to demonstrate avoidance

Section 6.12(c) of the Biodiversity Conservation Act 2016 (NSW) (BC Act) requires that a BDAR "set out the measures that the proponent of the proposed development… proposes to take to avoid or minimise the impact of the proposed development".

The Court concluded that statements in the proponent's BDAR about the unavoidability of impacts were not based on verifiable analysis, nor supported by adequate assessment and, therefore, the BDAR did not meet the requirements of section 6.12(c) in relation to "avoidance".

It also referred to the requirements in the Biodiversity Assessment Method (BAM) to document and justify actions which have been taken to avoid and minimise biodiversity impacts. The BC Act requires that a BDAR assess the biodiversity impacts of a development proposal in accordance with BAM.

Additional biodiversity requirements in the LEP

The proponent contended that the requirement in the LEP went beyond what the BC Act required (and so was inconsistent with the BC Act) and, therefore, the proponent did not need to comply with it. The Court disagreed. On the contrary, it found that:

  • section 7.13 of the BC Act facilitates the consideration of biodiversity impacts by a consent authority, and expressly allows the consent authority to refuse a DA or require additional mitigation measures in a development consent (beyond those proposed in the BDAR), on the basis of biodiversity impacts; and
  • the LEP requirement is consistent with the assessment requirements of the BC Act.

The proponent also contended that:

  • the requirement in the LEP to design, site and manage the proposal to "avoid any potentially adverse environmental impact" should be interpreted within the context of what is permissible on the development site; and
  • the proponent had sought to avoid biodiversity impacts, including on the CEECs, by proposing a subdivision design that delivered 6 lots which were consistent with the applicable minimum lot size provisions, whilst minimising tree loss.

The Court rejected those arguments. It concluded that the proponent had to satisfy the LEP requirement and had failed to do so, because the evidence indicated that it had not demonstrated that the proposal's biodiversity impacts could not be avoided.

It is not enough to pay lip service to "avoidance"

Currently there is a lot of attention on the NSW Government's Biodiversity Offsets Scheme. Various stakeholders, including developers and conservation groups, have expressed concerns that the offsets scheme is not achieving its aims, and there is currently a Parliamentary Inquiry into the scheme.

The Court's decision in Sandy Outlook refocuses assessments on what should happen before offsets are considered.

A BDAR must address the principle of avoiding biodiversity impacts and explain why the assessed biodiversity impacts of a development proposal could not have been avoided. A conclusion that ecological impacts are "unavoidable" or have been avoided as far as practicable should be supported by thoughtful assessment and verifiable analysis.

In addition, if there are other applicable biodiversity requirements in planning instruments, they should be addressed too.

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