05 Feb 2015

Independent panel proposes sweeping biodiversity conservation reform for NSW

by Nick Thomas, Tom Dougherty

The Panel's recommendations reflect a shift from site-specific biodiversity assessments and conservation requirements to State-wide or regionally focused conservation.

The NSW Independent Biodiversity Legislation Review Panel has submitted its final report on the operation of the NSW legislative and policy framework for biodiversity conservation.

It has recommended sweeping reforms to biodiversity law, policy and practice in NSW, including:

  • a focus on conserving biodiversity at a regional or State scale, and a move away from focusing on site-specific conservation;
  • a new approach to managing biodiversity in agricultural land use;
  • a broader and deeper application of biodiversity offsetting, as approved in the newly introduced NSW Biodiversity Offsetting Policy for Major Projects, with emphasis on the establishment of a State-wide biodiversity offsets fund and a development contributions scheme to support it; and
  • replacement of existing biodiversity laws with a new Biodiversity Conservation Act, which promotes ecologically sustainable development and provides outcomes focused, risk-based and proportionate regulation.

We discuss some of the key recommendations below.

The Panel's brief and its final report

The Panel was appointed by the NSW Minister for the Environment to assess the policy settings, programs and funding arrangements that support the management of biodiversity, threatened species and native vegetation. The Terms of Reference for the biodiversity legislation review also directed the Panel to consider future regulatory frameworks that:

  • increase regulatory efficiency, remove duplication and promote consistency in approval requirements;
  • increase upfront clarity and transparency in environmental standards;
  • minimise the private costs and maximise the public benefits of regulation;
  • encourage economic development, including by supporting regional and rural communities without devaluing the environment and biodiversity; and
  • build resilience to environmental hazards and risks.

The Panel's final report was released publicly on 18 December 2014. The Panel makes 43 recommendations in the final report and supports "fundamental and transformative reform" to conserve NSW's biodiversity and support sustainable development.

Overall, the recommendations are made under six themes: Conservation in development and land management; Conservation in land use planning; Conservation action; Managing wildlife interactions; Knowledge, information and science; and Objects for a Biodiversity Conservation Act.

Conserving biodiversity at a regional or State scale

The Panel's recommendations reflect a shift from site-specific biodiversity assessments and conservation requirements to State-wide or regionally focused conservation. Its recommendations support:

  • more strategic conservation efforts, which establish biodiversity corridors rather than isolated pockets of conserved land;
  • biodiversity certification in appropriate situations;
  • the incorporation of clear biodiversity objectives and priorities in State and regional plans and planning instruments, rather than separate conservation plans (this should provide better integration of biodiversity conservation and other planning matters); and
  • the establishment of a conservation fund, to which projects proponents can contribute for biodiversity offsets, rather than having to source specific conservation sites for offsets (the Government's new Biodiversity policy for major projects already proposes this).

A new approach to managing biodiversity in agricultural land use

The Panel's first several recommendations focus on creating a level playing field for biodiversity management of agricultural activities. Essentially, the Panel proposes:

  • establishing planning controls for new agricultural activities which reflect planning controls for other activities, so that all forms of development are treated in a consistent and fair way;
  • management of existing activities through Local Land Services (under the Local Land Services Act 2013), and the adoption of codes of practice for land clearing associated with these activities; and
  • the repeal of the Native Vegetation Act 2003.

Broader and deeper application of biodiversity offsetting

The Panel appears to be very supportive of biodiversity offsetting as a means of achieving State-wide or regionally focused conservation. Its Report:

  • refers to the benefits of biobanking-style arrangements and biodiversity certification;
  • proposes measures to encourage and facilitate conservation initiatives on private land; and
  • proposes greater flexibility in site-specific or project-specific offsetting options (such as the offsets fund) to help achieve higher level conservation goals.

New legislative regime

The Panel considers that the current statutory framework does not align with contemporary government policy directions and results in a complex and over-regulated system.

It is concerned that multiple assessment pathways exist for determining biodiversity impacts of land management activities and land use change. In addition to concerns about the regulation of agricultural activities and the inefficiency of the current "improve or maintain" standard at a site scale under the Native Vegetation Act, the Panel criticised the seven-part assessment of significance under the Environmental Planning and Assessment Act 1979 as a mechanism that is less likely to be applied consistently due to it being more subjective and heavily reliant on consent authority discretion.

The Panel supports the adoption of a single, scientifically-based, transparent, publicly-available and independently reviewed method for assessing the biodiversity and other environmental impacts of all development in NSW.

Consequently, it recommends the repeal of:

  • the Native Vegetation Act 2003;
  • the Threatened Species Conservation Act 1995; and
  • the biodiversity-related parts of the National Parks and Wildlife Act 1974; and
  • the seven part test in the Planning Act,

and the making of a new, integrated Biodiversity Conservation Act.

The proposed Act would have the following objects:

  • to conserve biodiversity and ecological integrity at bioregional and state scales;
  • to facilitate ecologically sustainable development (and the definition of "ecologically sustainable development" would be expanded to require the effective integration of social, as well as economic and environmental, considerations in decision making); and
  • to improve and share knowledge, including local and Aboriginal knowledge, about the status and values of biodiversity and ecosystem services and the effectiveness of conservation actions.

It would provide a much more simplified, risk-based licensing system.

The Panel believes the new Act would enable NSW to obtain accreditation of its assessment and approval processes under bilateral agreements or strategic assessments made under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999.

Concluding comments

Overall, the Panel's proposed changes seek to improve environmental outcomes, reduce compliance burden and provide a greater potential for productivity gains by regulated parties.

The NSW Government is expected to respond to the Panel's recommendations before the State election in March 2015.


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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.