26 May 2016

Sweeping biodiversity and native vegetation reforms proposed for NSW

by Nick Thomas, Tom Dougherty

Developers and land owners should review the package and consider making a submission before 28 June.

The NSW Government has released its long-awaited draft reform package for biodiversity conservation and native vegetation management.

The package proposes a new regulatory scheme which combines elements of the existing system in a more co-ordinated and simplified way, establishes a new regime for land clearing and management, provides a single biodiversity offsets system which adapts many of the elements of the major projects offsets policy, and unifies the various arrangements for conserving biodiversity on private land.

In February 2015, we outlined recommendations of the Independent Biodiversity Legislation Review Panel to reform biodiversity law, policy and practice in NSW. The NSW Government committed to the implementation of all 43 recommendations in March 2015. The reform package is meant to deliver on that commitment.

The reform package is open for public consultation and submissions are accepted until 5.00pm, 28 June 2016.

Although the reform package is intended to simplify land management and biodiversity conservation, it is wide-ranging, detailed and multi-layered. In this article, we focus on the proposed new Biodiversity Offsets Scheme and provide a brief overview of some other key features of the reform package.

New legislative framework

The reform package includes draft new legislation to replace or amend existing regulatory frameworks as outlined in the table below.

New legislation

Change to existing legislation

Key reforms

Biodiversity Conservation Bill 2016

  • Repeal: Threatened Species Conservation Act 1995 (TSC Act)
  • Repeal: National Parks and Wildlife Act 1974 (animal and plant provisions only)
  • Amend: a range of other Acts and instruments
  • New Biodiversity Assessment Method to assess biodiversity impacts
  • "Avoid, minimise, offset" principle for development proposals
  • "Like for like or better" offset standard
  • New Biodiversity Conservation Fund for discharging offset obligations
  • Protecting "Areas of Outstanding Biodiversity Value"
  • New Biodiversity Assessment Method to assess biodiversity impacts
  • "Avoid, minimise, offset" principle for development proposals
  • "Like for like or better" offset standard
    New Biodiversity Conservation Fund for discharging offset obligations
  • Protecting "Areas of Outstanding Biodiversity Value"

Local Land Services Amendment Bill 2016

  • Repeal: Native Vegetation Act 2003
  • Amend: Local Land Services Act 2013 in relation to native vegetation land management in rural areas.
  • Native Vegetation Regulatory Map (NVR Map) showing designated areas for clearing of native vegetation
  • Land Management Codes of Practice permitting various land management and clearing activities
  • Native Vegetation Regulatory Map (NVR Map) showing designated areas for clearing of native vegetation
  • Land Management Codes of Practice permitting various land management and clearing activities


New Biodiversity Offsets Scheme

The new Biodiversity Offsets Scheme is designed to provide up-front certainty for landowners, developers and the community and strengthen the long-term conservation outcomes for NSW.

Biodiversity Assessment Method

The Biodiversity Assessment Method (BAM) seeks to establish a single, uniform biodiversity assessment pathway for NSW and replace other existing approaches[1]. The BAM will streamline the biodiversity assessment process for:

  • development under the Environmental Planning and Assessment Act 1979 which is likely to significantly affect threatened species, populations and ecological communities and their habitats;
  • development which meets or exceeds the proposed BAM threshold criteria; and
  • clearing of native vegetation under the Local Land Services Act that requires approval.

The BAM will assist proponents to avoid and then minimise development impacts. If offsets are required for a development proposal, they will be calculated using the BAM.

For example, when the BAM is triggered for a development proposal, it will provide:

  • clear direction on assessing the biodiversity on a development site;
  • guidance on avoiding and minimising potential impacts; and
  • a calculation of an offset obligation resulting from any remaining impacts.

To ensure the appropriate application of the BAM, the reform package includes a new accreditation and certification scheme to provide for consistent BAM assessments by qualified assessors.

Proposed offset rules

International best practice principles have been incorporated into the proposed offset rules to ensure that:

  • proponents avoid and minimise impacts before considering offsets for any remaining impacts; and
  • offsets are "like for like or better", are not required by any existing regulatory framework, and will be enduring, enforceable and transparent.

The Biodiversity Bill provides for a threshold of "serious and irreversible impacts". Development which has such impacts will not be permitted, unless it is a major project and the relevant approval authority decides it may proceed despite having those impacts.

Regulations will be made under the Biodiversity Bill to establish offset rules, based on the following stages:

Stage 1: "Like for like" offsets to be secured and retired.

Stage 2: Where stage 1 is not achievable, a varied offset for a higher conservation outcome may be used (subject to strict requirements).

Stage 3: Where stages 1 and 2 are not achievable, biodiversity conservation actions (for example, actions for the purposes of research or education) may be used in place of biodiversity credits (subject to strict requirements).

Satisfying offset obligations

The proposed reforms will require a proponent to use the following options when seeking to discharge offset obligations:

Retire biodiversity credits

  • Purchase biodiversity credits in the open market and retire them as the primary means of offsetting
  • Establish a Biodiversity Stewardship Agreement with the Minister for the Environment (including on land owned by a proponent) to generate credits, and then sell or retire those credits.

Make a payment to the Biodiversity Conservation Fund

  • If suitable credits cannot be obtained, then make payment into the Biodiversity Conservation Fund, which the newly established Biodiversity Conservation Trust will use for securing offsets in a strategic way. The offsets payment calculator determines the payment amount.

Undertake biodiversity conservation actions (limited application)

  • In some situations, funding specific conservation actions will be available as an alternative to the two options above.

Commit to undertaking rehabilitation (limited application)

  • Available as a special arrangement in limited circumstances after activities have ceased.

Biodiversity certification

A revised biodiversity certification scheme will encourage assessment of biodiversity values at early planning stages, including incentives for councils to assess biodiversity impacts when considering future land use changes.

Further reforms

Protecting native plants and animals

Features of the current regulatory framework to protect threatened plants and animals will be retained to align with international best practice. Key elements of the framework include:

  • improving the process of listing threatened plants, animals and ecological communities and protecting them from extinction, including a common Commonwealth and NSW assessment method;
  • continuing to make it illegal to harm threatened plants or animals, ecological populations or communities, or their habitats, without specific approval;
  • expanding the Saving Our Species biodiversity conservation program with additional funding; and
  • identifying and protecting "Areas of Outstanding Biodiversity Value" (ie. "critical habitats" under the TSC Act) and imposing additional conservation requirements on those areas.

Under the Biodiversity Bill, wildlife activities will be assessed using a risk-based approach:

Activities that are exempt

  • Low-risk wildlife activities.
  • No ongoing licence, reporting or record keeping requirements.

Activities authorised by a code of practice

  • Moderate-risk wildlife activities.
  • No licence required when a code of practice is followed.

Activities that require a Biodiversity Conservation Licence

  • High-risk wildlife interactions.
  • Require a licence issued by the Office of Environment and Heritage.

New land management framework

The Local Land Services Amendment Bill introduces a revised land management framework to allow greater flexibility for NSW landholders to manage native vegetation. A proposed NVR Map underpins the new framework and pinpoints rural land that will be subject to, and exempt from, clearing controls under the Local Land Services Act.

Land identified on the NVR Map is categorised into the following activities:

Category 1 (exempt land): Clearing of native vegetation is exempt from the new land management framework.

Category 2 (regulated land): Clearing of native vegetation can occur in accordance with an allowable activity or Land Management Code of Practice under the Local Land Services Act. Proposed clearing that cannot occur in accordance with an allowable activity or code will need approval under the Local Land Services Act.

Excluded land: The land management framework does not apply, and clearing is regulated under planning law and the new Biodiversity Act framework, as well as some other legislation such as national parks and forestry legislation.

The land categories are designed to provide additional options for rural landowners and reduce the regulatory burden. Regulated land (category 2) provides a range of allowable activities and four types of land management codes (management, efficiency, equity and farm planning) permit low and moderate impact clearing of vegetation to improve business productivity.

However, the new land management framework will not apply to urban (for example, all Sydney local government areas) and other land use zones under local environmental plans (for example, business and commercial areas).

What's next?

The reform package is extensive and, at times, complex.

Developers and land owners should review the reform package carefully and consider making a submission by 28 June.

The Government has indicated it would like to have legislation in placed to implement the reform package by the end of 2016. It's likely that the new legislation would be implemented in a phased, transitional approach over several months in 2017. 

[1] The BAM will replace the Framework for Biodiversity Assessment, BioBanking Assessment Methodology, Biodiversity Certification Assessment Method and Environmental Outcomes Assessment Methodology.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.