Introductory note. This Part deals with the licensing by the Director-General of actions that are likely:• to harm threatened species, populations or ecological communities (in so far as animals are concerned) or to result in the picking of threatened species, populations or ecological communities (in so far as plants are concerned), or• to damage critical habitat or other habitat of those species, populations or ecological communities.Harm and pick are defined in the National Parks and Wildlife Act 1974.
A person does not commit an offence under Part 8A of the National Parks and Wildlife Act 1974 of harming or picking threatened species, populations or ecological communities or damaging a critical habitat or the habitat of threatened species, populations or ecological communities if the action taken by the person is essential for the carrying out of:
(a) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or(b) an activity, whether by a determining authority or pursuant to an approval of a determining authority, within the meaning of Part 5 of that Act if the determining authority has complied with that Part.Accordingly, a licence under this Act is not required for the taking of action that is so authorised under the Environmental Planning and Assessment Act 1979. However, the same tests are applied (with the involvement of the Minister administering this Act or the Director-General of National Parks and Wildlife) to assess the consequences of a development or an activity under that Act before a decision is made concerning it as are applied by the Director-General in determining whether a licence should be granted under this Part.
The Part also contains provisions about species impact statements. These statements are employed to measure the significance of the effect of actions on threatened species, populations or ecological communities, or their habitats. A species impact statement must be lodged with an application for a licence under this Part if the Director-General determines that the action proposed is likely to significantly affect threatened species, populations or ecological communities, or their habitats. A similar requirement applies when a development application is lodged, or an activity proposed, under the Environmental Planning and Assessment Act 1979 over critical habitat or that is likely to significantly affect threatened species, populations or ecological communities, or their habitats.
Division 1 deals with the grant of licences, including the making of applications, fees, determinations as to whether actions proposed will significantly affect threatened species, populations or ecological communities, publication of applications and the making of submissions concerning them, and matters that the Director-General must take into account before granting licences and appeals.
Division 2 deals with the form and content of species impact statements and the notification of the Director-General’s requirements as to their preparation. It also makes provision for the accreditation of persons to prepare assessments of species impact statements.
91 Licence to harm or pick threatened species, population or ecological communities or damage habitat
(1) The Director-General may grant a licence authorising a person to take action that is likely to result in one or more of the following:(a) harm to a threatened species, population or ecological community (so far as animals are concerned),(b) picking of a threatened species, population or ecological community (so far as plants are concerned),(c) damage to a critical habitat,(d) damage to a habitat of a threatened species, population or ecological community.(2) A general licence under section 120 of the National Parks and Wildlife Act 1974 may only be issued for a purpose referred to in subsection (1):(a) for scientific purposes, or(b) for the welfare of an animal, or(c) if there is a threat to life or property.(3) Despite subsection (1), a licence under this Part is not required for the carrying out of routine agricultural activities unless the actions are, or are of a class of actions, that the regulations prescribe may be carried out only under the authority of a licence under this Part.(4) The Minister must not recommend the making of a regulation that identifies actions, or actions of a class of actions, that may be carried out only under the authority of a licence under this Part unless the Minister certifies that the Director-General has consulted with the Director-General of the Department of Agriculture concerning the making of the regulation.(5) The Director-General may, for the purposes of this Act, approve of a property management plan for land prepared by a landholder. Any action identified in, and carried out in accordance with, a property management plan so approved by the Director-General does not require a licence under this Part even if the action is, or is of a class of actions, that may, in accordance with the regulations, be carried out only under the authority of a licence under this Part.(6) It is a defence to a prosecution for an offence under Part 8A of the National Parks and Wildlife Act 1974 if the accused proves that the action constituting the alleged offence:(a) was a routine agricultural activity, or(b) is identified in, and carried out in accordance with, a property management plan approved by the Director-General for the purposes of this Act.
(1) An application for a licence must be in a form approved, and be accompanied by an application fee of the amount prescribed, by the Director-General.(2) If the action proposed to be taken under the authority of the licence is on land that is critical habitat, the application must be accompanied by a species impact statement prepared in accordance with Division 2.(3) If the action proposed is not on land that is critical habitat, the application must include the following:(a) details of the types, and condition, of habitats in and adjacent to the land to be affected by the action,(b) particulars of any known records of a threatened species in the same or similar known habitats in the locality,(c) details of any known or potential habitat for a threatened species on the land to be affected by the action,(d) details of the amount of such habitat to be affected by the action proposed in relation to the known distribution of the species and its habitat in the locality and region,(e) an assessment of the likely nature and intensity of the effect of the action on the life cycle and habitat of the species,(f) details of possible measures to avoid or ameliorate the effect of the action.(4) An applicant may lodge a species impact statement with an application even if the action proposed is not on land that is critical habitat. In that event, the application need not include the information referred to in subsection (3).
93 Payment of licence processing fee
(1) The Director-General is to levy a processing fee, being not more than the costs (including on-costs) incurred by the National Parks and Wildlife Service in the assessment and processing of a licence application (whether or not the application is successful).(2) The fee is recoverable by the Director-General as a debt due to the Crown in a court of competent jurisdiction.(3) The Director-General may, before dealing with an application, require the applicant to pay an amount not exceeding one-half of the estimated processing fee.(4) The Director-General may reduce the amount of a processing fee levied for any licence application having regard to the following:(a) the extent of scientific examination necessary for the processing of the application,(b) the adequacy of any species impact statement or environmental impact statement that includes a species impact component supplied by the applicant,(c) the capacity of the applicant or persons with whom the applicant is associated to meet the fee levied,(d) whether and to what extent the activity sought to be licensed may confer a commercial benefit on the applicant if the licence is granted.(5) Before a prospective applicant for a licence lodges an application, the Director-General must advise the applicant of the maximum fee payable in respect of the application.
94 Significant effect on threatened species, populations or ecological communities, or their habitats
(1) If the action proposed to be taken by the applicant is not on land that is critical habitat and the application is not accompanied by a species impact statement, the Director-General must determine whether the action proposed is likely to significantly affect threatened species, populations or ecological communities, or their habitats.(2) For that purpose, the Director-General must take into account the following:(a) in the case of a threatened species, whether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at risk of extinction,(b) in the case of an endangered population, whether the life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised,(c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed,(d) whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community,(e) whether critical habitat will be affected,(f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region,(g) whether the action proposed is of a class of action that is recognised as a threatening process,(h) whether any threatened species or ecological community is at the limit of its known distribution.
95 Determination by Director-General as to significant effect
(1) If the Director-General determines that an action proposed by an applicant for a licence is likely to significantly affect threatened species, populations or ecological communities, or their habitats, the Director-General must notify the applicant that, if the application is to proceed, a species impact statement prepared in accordance with Division 2 must be provided.(2) If the Director-General determines that an action proposed is not likely to significantly affect threatened species, populations or ecological communities, or their habitats, a licence under this Act is not required and the Director-General must, as soon as practicable after making the determination, issue to the applicant a certificate to that effect.Note. An action that is not required to be licensed under this Act may however be required to be licensed under the National Parks and Wildlife Act 1974 if it is likely to affect protected fauna or protected native plants or may otherwise constitute an offence under that Act.
96 Publication of licence application
On the receipt of a licence application accompanied by a species impact statement or a species impact statement provided in response to a notification from the Director-General that a statement is required, the Director-General must cause to be placed in a newspaper circulating throughout the State a notice:(a) outlining the nature of the application, and(b) specifying the address of the place at which copies of the species impact statement may be inspected or purchased, and(c) inviting written submissions within a period of not less than 28 days after the date of the notice.
97 Matters that Director-General must take into account
(1) In considering whether to grant or to refuse to grant a licence application, the Director-General must take into account the following:(a) any species impact statement,(b) any written submissions received concerning the application within the period, and at the address for submissions, specified in the notice,(c) the factors specified in sections 10–15,(d) any relevant recovery plan or threat abatement plan,(e) the principles of ecologically sustainable development,(f) whether the action proposed is likely to irretrievably reduce the long-term viability of the species, population or ecological community in the region,(g) whether the action proposed is likely to accelerate the extinction of the species or ecological community or place it at risk of extinction.(2) The Director-General must also consider the likely social and economic consequences of granting or refusing to grant a licence application.
98 Director-General may request additional information
The Director-General may request the applicant to provide additional information in support of an application for a licence.
99 Determination of licence application
(1) After considering an application for a licence and accompanying material, the Director-General may:(a) grant the application, unconditionally or subject to conditions or restrictions, or(b) refuse the application.(2) The Director-General must, subject to subsection (3), make a decision about an application within 120 days after the Director-General receives a species impact statement or within such further period as may be agreed with the applicant for the licence.(3) The Director-General must not grant an application until the processing fee levied in respect of it has been paid.(4) A licence may authorise specified persons in addition to the person to whom the licence is granted to do the things authorised by the licence. In any such case, the specified persons are taken to be the holders of the licence for the purposes of this Act.(5) For the avoidance of doubt, it is declared that the Director-General is not a determining authority for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 when granting a licence.
100 Licence may extend to protected fauna or protected native plants
(1) The Director-General may, in a licence granted under this Part, authorise a person to take action that is likely to result in either or both of the following:(a) harm to protected fauna,(b) picking of protected native plants.(2) In this section, protected fauna and protected native plant have the same meanings as in the National Parks and Wildlife Act 1974.
101 Conditions and restrictions to licence
(1) Without limiting section 99 (1) (a), the Director-General may grant an application for a licence subject to a condition that the applicant:(a) make specified modifications to the action proposed, whether in relation to the area of land proposed to be affected or otherwise, or(b) make a monetary contribution towards the cost of preparation of a recovery plan for any threatened species, population or ecological community, or any of their habitats, likely to be affected by the action proposed.(2) The Director-General may, by notice in writing served on the holder of a licence:(a) attach any conditions or restrictions to the licence after its issue, or(b) vary or remove any conditions or restrictions attached to any licence, or(c) otherwise vary the licence.Note. Section 133 of the National Parks and Wildlife Act 1974 requires that the holder of a licence under this Part must not contravene or fail to comply with any condition or restriction attached to the licence.
102 Proposed variation of licence to be publicly notified
(1) Despite section 101 (2), the Director-General must, before removing or varying any condition or restriction attached to a licence:(a) cause to be placed in a newspaper circulating throughout the State a notice:(i) outlining the nature of the proposed variation to the licence, and(ii) specifying the address of the place at which copies of any species impact statement relating to the licence may be inspected or purchased, and(iii) inviting written submissions within a period of not less than 28 days after the date of the notice, and(b) take into account the matters specified in section 97.(2) This section does not apply if the proposed variation to the licence constitutes a minor amendment only of that licence.
103 Notification of licence determination
The Director-General is to notify an applicant and any person who has made submissions of the Director-General’s determination of a licence application.
104 Director-General to keep register of licences
(1) The Director-General must keep a register containing copies of licences issued under this Division as in force from time to time.(2) The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Director-General.
(1) A licence granted under this Part may be cancelled by the Director-General.(2) The Director-General is to notify the holder of a licence of its cancellation and is to include the reasons for the cancellation in that notification.
106 Appeal by applicant or person commenting on licence application
(1) An applicant for a licence or a person who has made written submissions (within the period specified in this Division) about an application for a licence, or a person to whose licence conditions or restrictions have been attached or whose licence has been varied or cancelled may, if dissatisfied with the Director-General’s decision, appeal to the Land and Environment Court.(2) In determining an appeal about an application for a licence, the Court must take into account the matters set out in section 97, but this requirement does not limit the operation of section 39 of the Land and Environment Court Act 1979.
107 Time for appeal, and deemed approval
(1) An appeal may be made by a person within 28 days after notification has been given to the person under section 101 (2), 103 or 105 (2) or, if the appellant is dissatisfied with any condition or restriction attached to a licence when it is granted, within 28 days after the licence is granted.(2) If the Director-General fails to grant, but does not refuse, a licence application by the expiry of the period of 120 days referred to in section 99 (2) or of any extension of that period agreed to by the Director-General and the applicant for the licence, the application is taken to have been granted.
108 Stay of operation of licence pending appeal
(1) If an appeal relates to the grant of a licence, the licence has no operation until the expiration of the period within which a person entitled to lodge an appeal may do so or, if an appeal has been lodged, until the appeal is finally determined.(2) If no written submissions about an application of a licence are received at the specified place and by the specified date and the applicant informs the Director-General in writing that the applicant does not wish to lodge an appeal but that the applicant wishes the licence to commence, the licence is to operate from a date stipulated by the Director-General.
Division 2 Species impact statements
109 Form of species impact statements
(1) A species impact statement must be in writing.(2) A species impact statement must be signed by the principal author of the statement and by:(a) the applicant for the licence, or(b) if the species impact statement is prepared for the purposes of the Environmental Planning and Assessment Act 1979, the applicant for development consent or the proponent of the activity proposed to be carried out (as the case requires), or(c) if the species impact statement is prepared for the purposes of the Plantations and Reafforestation Act 1999, the applicant for authorisation under that Act.
110 Content of species impact statement
(1) A species impact statement must include a full description of the action proposed, including its nature, extent, location, timing and layout and, to the fullest extent reasonably practicable, the information referred to in this section.(2) A species impact statement must include the following information as to threatened species and populations:(a) a general description of the threatened species or populations known or likely to be present in the area that is the subject of the action and in any area that is likely to be affected by the action,(b) an assessment of which threatened species or populations known or likely to be present in the area are likely to be affected by the action,(c) for each species or population likely to be affected, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or threat abatement plan applying to it,(d) an estimate of the local and regional abundance of those species or populations,(e) (Repealed)(f) a full description of the type, location, size and condition of the habitat (including critical habitat) of those species and populations and details of the distribution and condition of similar habitats in the region,(g) a full assessment of the likely effect of the action on those species and populations, including, if possible, the quantitative effect of local populations in the cumulative effect in the region,(h) a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development,(i) a full description and justification of the measures proposed to mitigate any adverse effect of the action on the species and populations, including a compilation (in a single section of the statement) of those measures,(j) a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the species or population.(3) A species impact statement must include the following information as to ecological communities:(a) a general description of the ecological community present in the area that is the subject of the action and in any area that is likely to be affected by the action,(b) for each ecological community present, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or any threat abatement plan applying to it,(c) a full description of the type, location, size and condition of the habitat of the ecological community and details of the distribution and condition of similar habitats in the region,(d) a full assessment of the likely effect of the action on the ecological community, including, if possible, the quantitative effect of local populations in the cumulative effect in the region,(e) a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development,(f) a full description and justification of the measures proposed to mitigate any adverse effect of the action on the ecological community, including a compilation (in a single section of the statement) of those measures,(g) a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the ecological community.(4) A species impact statement must include details of the qualifications and experience in threatened species conservation of the person preparing the statement and of any other person who has conducted research or investigations relied on in preparing the statement.(5) The requirements of subsections (2) and (3) in relation to information concerning the State-wide conservation status of any species or population, or any ecological community, are taken to be satisfied by the information in that regard supplied to the principal author of the species impact statement by the National Parks and Wildlife Service, which information that Service is by this subsection authorised and required to provide.
111 Director-General’s requirements
(1) The person applying for the licence (or, if the species impact statement is being prepared for the purposes of the Environmental Planning and Assessment Act 1979, the applicant for development consent or the proponent of the activity or, if the species impact statement is being prepared for the purposes of the Plantations and Reafforestation Act 1999, the applicant for authorisation under that Act) must request from the Director-General and must, in preparing the species impact statement, comply with any requirements notified to the person by the Director-General concerning the form and content of the statement.(2) The Director-General must notify any requirements under this section within 28 days after having been requested to provide them.(3) Despite the other provisions of this Division, the Director-General may, having regard to the circumstances of a particular case, limit or modify (or limit and modify) the matters to be included in a species impact statement in such manner as may be specified by the Director-General in the particular case.(4) Despite anything in this Act or the Environmental Planning and Assessment Act 1979 or the Plantations and Reafforestation Act 1999, the Director-General may, having regard to the circumstances of a particular case, dispense with the requirement for a species impact statement in the particular case if the Director-General is satisfied that the impact of the activity concerned will be trivial or negligible.
The regulations may make further provision for or with respect to the form and contents of species impact statements.
113 Director-General may accredit persons to prepare assessments of species impact statements
(1) The Director-General is to institute arrangements for the accreditation of suitably qualified and experienced persons to prepare assessment reports on species impact statements for the purposes of this Act.(2) An applicant for accreditation must furnish the Director-General with such information as the Director-General requires to effectively determine the application and must be accompanied by the fee fixed by the Director-General for the consideration of the application.(3) An accreditation is to be for the period specified by the Director-General in the instrument of accreditation, and the accreditation (or any renewal of it) may be given subject to the conditions and restrictions (if any) specified in the instrument of accreditation.(4) The Director-General may vary conditions or restrictions (if any) attaching to an accreditation and may suspend or cancel an accreditation.