The biodiversity reform package contains both contentious and long awaited reforms to the threatened species and native vegetation regimes. Gadens provides a snapshot of some of the key reforms currently being debated in the NSW parliament.
Biodiversity reform package
The package contains the Biodiversity Conservation Bill 2016 (Biodiversity Bill), which repeals the Threatened Species Conservation Act 1995 and the Nature Conservation Trust Act 2001, and the Local Land Services Amendment Bill 2016, (Land Services Bill) which repeals the Native Vegetation Act 2003.
Requirement to prepare a Biodiversity development assessment report for development approvals
A biodiversity development assessment report will be required as part of an application for development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) if the activity is likely to significantly affect threatened species.
The report will assess the biodiversity values, impacts, avoidance and mitigation measures and biodiversity credits required to offset the residual impacts under the biodiversity offsets scheme.
Biodiversity offsetting scheme
The scheme replaces existing conservation and offset agreements with a new scheme providing for biodiversity stewardship sites and management actions on those sites. The new agreements will create biodiversity credits which are then transferred (allowing sale of the credits) or retired (meaning they cannot be sold) (Part 6, Biodiversity Bill).
For projects involving clearing of native vegetation and the loss of habitat, biodiversity credits must be retired to offset the residual impact on biodiversity values. Payment into a fund may be used as an alternative to retiring credits.
The consent authority must (except for State significant development) refuse to grant consent to a project which is likely to have a serious and irreversible impact on biodiversity values.
Voluntary planning agreements made under the EP&A Act may make provision for offsetting biodiversity values. Contributions under the EP&A Act are not affected by biodiversity offsetting.
Land of outstanding biodiversity and biodiversity certification of land
The Minister can declare an area to be of outstanding biodiversity value, however mechanisms for the protection of these areas will be dealt with by Regulation (which are not made yet).
The ability to obtain biodiversity certification of land will continue however under the Biodiversity Bill an application for biodiversity certification may be made by a landowner or a planning authority.
The Minister may enter into a biodiversity certification agreement to provide monetary or credit contributions. These agreements run with the title of the land.
The Minister is required to map all public and private land in areas of the State whose biodiversity is protected.
The Land Services Bill requires native vegetation mapping for exempt, regulated and vulnerable land and also provides information about regulating clearing of native vegetation.
There are various public consultation requirements relating to Ministerial declarations and other matters. A lack of public consultation will not invalidate a document made under the Biodiversity Bill.
Regulatory matters and court proceedings
Regulatory and compliance mechanisms regarding biodiversity offsets, investigation powers and Land and Environment Court proceedings are specified. Numerous offences are created, particularly relating to threatened species.
Find out more
At the time of writing the Biodiversity Bill and Local Land Services Bill have passed through the NSW Legislative Council and are being debated in the Legislative Assembly. A number of amendments to the bills have been debated. A more in depth analysis will follow if the Bills are passed.