Threatened Species Conservation Act 1995 No 101
Current version for 17 October 2014 to date (accessed 21 November 2014 at 22:59)
Part 7ADivision 6

Division 6 Biobanking statements

127ZJ   Development for which biobanking is available

For the purposes of this Part, development for which biobanking is available means any development (whether or not development that is a project to which Part 3A of the Planning Act applies or development that is State significant infrastructure under Part 5.1 of that Act, development that requires development consent under Part 4 of that Act or development that is an activity to which Part 5 of that Act applies) other than the following:
(a)  any clearing of native vegetation that must not be carried out except in accordance with a development consent granted in accordance with the Native Vegetation Act 2003 or a property vegetation plan under that Act,
(b)  development declared by the regulations to be development in respect of which biobanking is not available.
Note. A biobanking statement may be issued in respect of any development that is development for which biobanking is available. However, participation in the scheme is voluntary (that is, it is not necessary to obtain a biobanking statement in respect of the development). If a statement is obtained, the proponent of the development obtains the benefit of the statement (as set out in sections 127ZO and 127ZP). The conditions of the statement will be incorporated into the conditions of the development consent or approval for the activity given under the Planning Act.

127ZK   Application for biobanking statement in respect of development

(1)  A person who proposes to carry out any development for which biobanking is available may apply to the Director-General for a biobanking statement in respect of the development.
(2)  The application must be made in a form approved by the Director-General and be accompanied by such fee, if any, as may be approved by the Director-General.
(3)  An application for a biobanking statement must be accompanied by:
(a)  a description of the development to which the application relates, and
(b)  a statement of any onsite measures that are proposed to be taken in connection with the development to minimise the impact of the development on biodiversity values, and
(c)  an assessment of the impact or likely impact of the development on biodiversity values, prepared in accordance with the biobanking assessment methodology, and
(d)  a statement of the number and class (if applicable) of biodiversity credits proposed to be retired to offset the impact or likely impact of the development on biodiversity values, prepared in accordance with the biobanking assessment methodology.
(4)  The regulations may prescribe other things that are required to be submitted with the application.

127ZL   Circumstances in which biobanking statement may be issued

(1)  The Director-General may, on application made in accordance with this Part, issue a biobanking statement in respect of a proposed development if the development will improve or maintain biodiversity values.
(2)  For the purposes of this Division, a development will improve or maintain biodiversity values only if a determination is made by the Director-General, on the basis of an assessment of the development in accordance with the biobanking assessment methodology (including the number and class of biodiversity credits to be retired as an offset against the negative impact of the development on biodiversity values), that the development will improve or maintain biodiversity values.
(3)  The Director-General must refuse to issue a biobanking statement in respect of a development that does not improve or maintain biodiversity values.
(4)  In addition, the Director-General may refuse an application for the issue of a biobanking statement:
(a)  if the application does not comply with this Part or the regulations, or
(b)  if, in the opinion of the Director-General, insufficient information is provided to enable a biobanking statement to be issued, or
(c)  if, in the opinion of the Director-General, the application does not sufficiently address the biobanking assessment methodology, or
(d)  if, in the opinion of the Director-General, the applicant has not demonstrated that all cost effective onsite measures to minimise any negative impact of the development on biodiversity values are being or will be carried out, or
(e)  for any other reason specified in the regulations.
(5)  The Director-General must refuse an application for the issue of a biobanking statement if:
(a)  the application relates to development that is not development for which biobanking is available, or
(b)  the application relates to development that requires planning concurrence under section 127ZM and the Director-General of the Department of Planning does not concur with the issue of the statement.
(6)  A biobanking statement may apply generally to the proposed development or may be limited by reference to one or more of the following:
(a)  the impact or potential impact of the proposed development on specified biodiversity values,
(b)  a specified aspect of the proposed development,
(c)  a specified part of the land on which the development is to be carried out.
(7)  The regulations may prescribe a period after making an application for a biobanking statement at the end of which, if the Director-General fails to either issue or refuse to issue a biobanking statement, the Director-General is taken to have refused to issue the biobanking statement.
(8)  A refusal by the Director-General to issue a biobanking statement in respect of development does not prevent the development being evaluated or assessed in accordance with the provisions of the Planning Act that would apply in respect of the development, but for this Part.
Note. Participation in the biobanking scheme is voluntary. If a biobanking statement is not obtained in respect of a development (including because it is refused by the Director-General) the development may still be evaluated or assessed in accordance with the relevant provisions of the Planning Act. These provisions may require (among other things) the preparation of a species impact statement and the concurrence of, or consultation with, the Minister for the Environment and the Director-General.
(9)  A consent authority or determining authority cannot refuse to consent to or approve a development or activity under Part 4 or 5 of the Planning Act on the ground that an application for a biobanking statement in respect of the development or activity was refused.
(10)  A biobanking statement is not an approval for the purposes of Part 5 of the Planning Act.

127ZM   Concurrence of Director-General of Department of Planning required in certain cases

(1)  If the Director-General is of the opinion that a proposed development requires planning concurrence, the Director-General must not issue a biobanking statement in relation to the development unless:
(a)  the Director-General has given the Director-General of the Department of Planning notice of the proposal to issue the biobanking statement, and
(b)  the Director-General of the Department of Planning concurs with the issue of the biobanking statement.
(2)  For the purposes of this section, development requires planning concurrence if the development is of a kind declared by a State environmental planning policy made under the Planning Act to be development requiring planning concurrence.
(3)  The Director-General of the Department of Planning may concur, or refuse to concur, with the issue of a biobanking statement by the Director-General of the Department of Environment, Climate Change and Water.
(4)  The Director-General of the Department of Planning may refuse to concur with the issue of a biobanking statement on any grounds specified in a State environmental planning policy made under the Planning Act.
(5)  If the Director-General of the Department of Planning fails to notify the Director-General of the Department of Environment, Climate Change and Water whether the Director-General concurs, or refuses to concur, with the issue of a biobanking statement by the end of the relevant consultation period, the Director-General of the Department of Planning is taken to have concurred with the issue of the biobanking statement.
(6)  For the purposes of this section, the relevant consultation period means the period of 21 days after the Director-General of the Department of Environment, Climate Change and Water gives the Director-General of the Department of Planning notice of the proposal to issue a biobanking statement or such other period as may be agreed (either generally or in a particular case) by the Director-General of the Department of Environment, Climate Change and Water and the Director-General of the Department of Planning.
(7)  For the purposes of the Planning Act, the kinds of development for which planning concurrence is required under this section, and the grounds on which the Director-General of the Department of Planning may refuse to concur to the issue of a biobanking statement, are taken to be matters of State environmental planning significance.

127ZN   Form and conditions of biobanking statement

(1)  A biobanking statement must:
(a)  describe the development to which the statement relates, and
(b)  specify any conditions applicable to the statement, being conditions of the following kind:
(i)  a condition or conditions relating to the onsite measures that must be taken in connection with the development to minimise any negative impact on biodiversity values,
(ii)  a credit retirement condition, being a condition that specifies the number and class of biodiversity credits (if any) that are to be retired to ensure that the development improves or maintains biodiversity values, and the timing of that retirement.
(2)  If the biobanking statement specifies a credit retirement condition, it must also describe any deferred retirement arrangement that applies in respect of the credit retirement condition.
(3)  A biobanking statement is to be issued in a form approved by the Director-General.
(4)  The Director-General may, before issuing a biobanking statement, provide a draft of the statement proposed to be issued to the applicant.
(5)  The Director-General may provide a copy of a biobanking statement, or a draft of a statement proposed to be issued by the Director-General, to the Minister administering the Planning Act, a consent authority, a determining authority (within the meaning of Part 5 of that Act), or to any other person prescribed by the regulations.

127ZO   Effect of issue of biobanking statement—development requiring development consent

(1)  If development described in a biobanking statement supplied to a consent authority is development for which consent is required under Part 4 of the Planning Act, the development is taken, for the purposes of that Part, to be development that is not likely to significantly affect any threatened species, population or ecological community under this Act, or its habitat.
(2)  If a consent authority grants consent, under Part 4 of the Planning Act, to the carrying out of development in respect of which a biobanking statement has been issued and supplied to the consent authority, being a statement that specifies conditions, the consent authority must impose (and is taken to be authorised under that Act to impose) a condition on the grant of that consent that requires those conditions to be complied with.
Note. The carrying out of development in contravention of the conditions of a development consent is an offence under section 126 of the Planning Act.
(3)  A person cannot appeal to the Land and Environment Court under the Planning Act in respect of a condition imposed by a consent authority under subsection (2).
(4)  Subsection (2) does not affect the right of a consent authority to impose conditions under section 80A of the Planning Act not inconsistent with the conditions of a biobanking statement or to refuse consent.
(5)  Despite section 79C of the Planning Act, if a biobanking statement has been issued in respect of a development, a consent authority is not required to take into consideration the likely impact of the development on biodiversity values.
(6)  An applicant for development consent under Part 4 of the Planning Act may request the consent authority to review its determination to impose any conditions on the consent (not being an environmental contribution condition) that are additional to the conditions of a biobanking statement on the ground that the condition is inconsistent with the conditions of the biobanking statement. In particular, a review may be requested because the additional condition relates to impacts that were assessed by the Director-General, in accordance with the biobanking assessment methodology, prior to the issue of the biobanking statement.
(7)  Section 82A of the Planning Act applies in respect of any such review, with any necessary modifications, whether or not the consent authority is a council, and whether or not the determination is a determination to which that section would otherwise apply.
(8)  This section applies subject to any terms of the biobanking statement that limit the statement to:
(a)  a particular aspect of the development, or
(b)  a particular part of the land on which the development is to be carried out, or
(c)  the impact of the development on particular biodiversity values.
(9)  Nothing in this section affects the operation of Part 4 of the Planning Act in respect of any development that is likely to significantly affect any threatened species, population or ecological community within the meaning of Part 7A of the Fisheries Management Act 1994.
(10)  In this section:

environmental contribution condition means a condition that requires an environmental contribution (within the meaning of section 127B).

127ZP   Effect of issue of biobanking statement—activities under Part 5 of Planning Act

(1)  If development described in a biobanking statement supplied to a determining authority is an activity to which Part 5 of the Planning Act applies, the activity is taken, for the purposes of that Part, to be an activity that is not likely to significantly affect any threatened species, population or ecological community under this Act, or its habitat.
(2)  If a determining authority approves an activity under Part 5 of the Planning Act in respect of which a biobanking statement has been issued and supplied to the determining authority, being a statement that specifies conditions, the determining authority must impose (and is taken to be authorised to impose) a condition on the approval of the activity that requires those conditions to be complied with.
(3)  Subsection (2) does not affect the right of a determining authority to impose conditions on the approval of the activity under section 112 of the Planning Act not inconsistent with the conditions of a biobanking statement or to refuse to approve the activity.
(4)  If there is a right of appeal under any Act in respect of conditions imposed on the approval, that right does not apply in respect of a condition imposed by the determining authority under subsection (2).
(5)  If a determining authority is the proponent of an activity under Part 5 of the Planning Act in respect of which a biobanking statement has been issued, being a statement that specifies conditions, the determining authority must carry out the activity in accordance with the conditions of the biobanking statement.
(6)  Subsection (5) does not affect the right of a determining authority to refrain from carrying out the activity or to modify its activity in a manner not inconsistent with the conditions of the biobanking statement.
(7)  Despite section 111 of the Planning Act, if a biobanking statement has been issued in respect of an activity, a determining authority is not required to consider the effect of the activity on biodiversity values.
(8)  A determining authority is to make arrangements that enable a proponent of an activity to seek a review by the determining authority of any conditions imposed on an approval that are additional to the conditions of a biobanking statement, for the purpose of ensuring that the additional conditions are consistent with the conditions of the biobanking statement. In particular, the arrangements should enable a review to be obtained in relation to any additional condition that relates to impacts that were assessed by the Director-General, in accordance with the biobanking assessment methodology, prior to the issue of the biobanking statement.
(9)  This section applies subject to any terms of the biobanking statement that limit the statement to:
(a)  a particular aspect of the activity, or
(b)  a particular part of the land on which the activity is to be carried out, or
(c)  the effect of the activity on particular biodiversity values.
(10)  For the purposes of this or any other Act, if a determining authority fails to comply with this section in relation to an activity the determining authority is taken not to have complied with Part 5 of the Planning Act.
(11)  Nothing in this section affects the operation of Part 5 of the Planning Act in respect of any activity that is likely to significantly affect any threatened species, population or ecological community within the meaning of Part 7A of the Fisheries Management Act 1994.

127ZQ   Modification, revocation and lapsing of biobanking statement

(1)  A person may apply to the Director-General for the modification or revocation of a biobanking statement.
(2)  An application may be made by:
(a)  the person who applied for the biobanking statement, or
(b)  any other person entitled to act on a development consent or approval under the Planning Act given in relation to the development described in the biobanking statement.
(3)  Subject to the regulations, this Division applies to an application to modify or revoke a biobanking statement in the same way as it applies to the original application.
(4)  A biobanking statement (unless revoked sooner) ceases to have any effect under this Part:
(a)  at the end of the period of 2 years after it is issued by the Director-General, or
(b)  if it is extended by the Director-General before the end of that 2-year period, at the end of the extended period.
(5)  A biobanking statement does not cease to have effect at the end of the 2-year period referred to in subsection (4) if the statement is acted on before the end of that period.
(6)  If a biobanking statement is revoked before the statement is acted on, and a new biobanking statement is not issued in respect of the development, the Planning Act applies in respect of the assessment and evaluation of the development to which the biobanking statement applied, and any consent or approval granted in respect of the development, as if the statement had not been issued.
Note. Participation in the biobanking scheme is voluntary. Accordingly, a developer who has obtained a biobanking statement may apply for the revocation of that statement and have the development evaluated, consented to or approved in accordance with the relevant provisions of the Planning Act. These provisions may require (among other things) the preparation of a species impact statement and the concurrence of, or consultation with, the Minister for the Environment and the Director-General.
(7)  For the purposes of this section, a biobanking statement is acted on if:
(a)  in the case of a statement that relates to a project to which Part 3A of the Planning Act applies, the Minister administering that Act approves that project, or
(a1)  in the case of a statement that relates to State significant infrastructure to which Part 5.1 of the Planning Act applies, the Minister administering that Act approves the infrastructure, or
(b)  in the case of a statement that relates to development for which consent is required under Part 4 of the Planning Act—development consent is granted in respect of the development, or
(c)  in the case of a statement that relates to an activity under Part 5 of the Planning Act—a determining authority approves the activity or commences carrying out the activity.

127ZR   Minister may require retirement of credits

(1)  The Minister may, by order in writing to a person, direct the person to retire biodiversity credits of a specified number and class (if applicable) within a time specified in the order.
(2)  A direction may be given to a person under this section if:
(a)  the person carries out development in respect of which a biobanking statement has been issued, and
(b)  the person fails to retire biodiversity credits in accordance with a credit retirement condition specified in the biobanking statement that has effect.
(3)  For the purposes of this section, a credit retirement condition has effect if:
(a)  in the case of a statement that relates to a project to which Part 3A of the Planning Act applies, the Minister administering that Act imposes the credit retirement condition as a condition of approval under that Part, or
(a1)  in the case of a statement that relates to State significant infrastructure to which Part 5.1 of the Planning Act applies, the Minister administering that Act imposes the credit retirement condition as a condition of approval under that Part, or
(b)  in the case of a statement that relates to development for which consent is required under Part 4 of the Planning Act—the development consent requires compliance with the credit retirement condition, or
(c)  in the case of a statement that relates to an activity under Part 5 of the Planning Act—an approval of a determining authority requires compliance with the credit retirement condition or, if the activity is to be carried out by the determining authority, the determining authority commences carrying out that activity.
(4)  A person must not, without reasonable excuse, fail to comply with a direction under this section.

Maximum penalty: 10,000 penalty units.

(5)  It is not an excuse for a failure to comply with a direction under this section that the person who is the subject of the direction does not, at the time the direction is given, hold a sufficient number of biodiversity credits to comply with the direction.
Note. If the person who is the subject of the direction does not hold a sufficient number of credits to comply with the direction, the person may obtain the required number by purchasing them.
(6)  A court that convicts a person of an offence under subsection (4) may, in addition to or in substitution for any pecuniary penalty for the offence, by order direct the person to retire, in accordance with this Part, biodiversity credits of a specified number and class (if applicable) within a time specified in the order and, if the person does not hold sufficient biodiversity credits to comply with the direction, to acquire the necessary biodiversity credits for the purpose of retiring them.
(7)  In this section:

conviction includes the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999.

127ZS   Director-General may verify retirement of biodiversity credits

(1)  The Director-General may issue a statement confirming that a number and class (if applicable) of biodiversity credits specified in the statement have been retired by a person for the purpose of complying with a credit retirement condition.
(2)  The Director-General may issue such a statement at the request of the Minister administering the Planning Act, a consent authority, a determining authority (within the meaning of Part 5 of that Act), the person who applied for the biobanking statement concerned or in any other circumstances prescribed by the regulations.
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