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Contents (1995 - 101)
Threatened Species Conservation Act 1995 No 101
Repealed version for 18 August 2017 to 24 August 2017 (accessed 24 November 2017 at 18:47)
Schedule 7
Schedule 7 Savings, transitional and other provisions
(Section 156)
Part 1 Savings and transitional regulations
1   Regulations
(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of:
this Act
Threatened Species Legislation Amendment Act 2004, to the extent that it amends this Act
National Parks and Wildlife Amendment Act 2010, to the extent that it amends this Act
(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done before the date of its publication.
Part 2 Amendments consequent on Threatened Species Conservation Act 1995
2   Dissolution of Scientific Committee
(1)  The Scientific Committee established under section 92A of the National Parks and Wildlife Act 1974, as inserted by the Endangered Fauna (Interim Protection) Act 1991, is dissolved.
(2)  A person who, immediately before the dissolution of the Scientific Committee referred to in this clause, held office as a member of that Scientific Committee:
(a)  ceases to hold that office, and
(b)  is eligible (if otherwise qualified) to be appointed as a member of the Scientific Committee established under this Act.
(3)  A person who so ceases to hold office as a member of the Scientific Committee is not entitled to any remuneration or compensation because of the loss of that office.
3   Extension of certain licences under section 120 of the National Parks and Wildlife Act 1974
(1)  This clause applies to a licence to which section 4 of the Endangered Fauna (Interim Protection) Amendment Act 1992 applied immediately before the repeal or expiry of that section.
(2)  A licence to which this clause applies continues in force, despite any expiry date specified in the licence, as if no such date had been so specified.
(3)  A licence to which this clause applies may be varied under section 133 of the National Parks and Wildlife Act 1974.
4   Certain licences taken to be licences under Part 6
(1)  A licence to which clause 3 refers is taken to be a licence under Part 6 of this Act and is as efficacious, in relation to the action that it authorises, as a licence granted under that Part.
(2)  In particular, a licence to which clause 3 refers is, in relation to the action that it authorises, taken to authorise the harming or picking of threatened species, populations or ecological communities, or the damaging of their habitats (including habitats that are critical habitats).
5   Savings in respect of planning matters
(1)  The amendments made by this Act to the Environmental Planning and Assessment Act 1979 do not affect:
(a)  any development consent granted before the commencement of this clause or any development carried out in accordance with such a consent, or
(b)  any activity to which Part 5 of that Act applies (or any approval for the carrying out of any such activity) if the provisions of that Part were complied with for that activity before the commencement of this clause.
(2)  If an application for development consent has not been finally determined on the commencement of this clause, the amendments made by this Act to the Environmental Planning and Assessment Act 1979 do not apply to the determination of the application or to any development carried out in accordance with a development consent granted on the determination of the application. However, the Minister for Planning may, by notice served on the consent authority, direct that all or any specified amendments apply to the determination of the application.
(3)  If, in respect of any activity to which Part 5 of that Act applies (or any approval for carrying out any such activity):
(a)  an environmental impact statement was duly obtained before the commencement of this clause, but the provisions of that Part had not been fully complied with before that commencement, or
(b)  the Director-General of the Department of Planning had duly notified the person preparing an environmental impact statement before the commencement of this clause of requirements with respect to the form and contents of the statement, but the statement had not been obtained before that commencement,
the statement (so long as it is obtained in accordance with the provisions of that Act as in force immediately before that commencement) is taken to have been obtained in accordance with that Act, as amended by this Act.
(4)  Subclause (3) does not apply to an activity that has not been carried out before the commencement of this clause if the Minister for Planning (by notice served on the person obtaining the statement concerned) so directs.
6   Savings in respect of stop work orders
A stop work order made under section 92E of the National Parks and Wildlife Act 1974 is, if it has any force or effect immediately before the repeal of that section, taken to be a stop work order under Part 6A of that Act, as inserted by this Act.
Part 3 Provisions consequent on Fisheries Management Amendment Act 1997
7   Saving of definition of regions
The amendments made to section 4 of this Act by the Fisheries Management Amendment Act 1997 do not affect any order made under that section before the commencement of those amendments with respect to regions under this Act.
8   Licences under Part 6
Section 91, as substituted by the Threatened Species Conservation Amendment Act 2002, does not apply in respect of a licence issued under Part 6 before that substitution.
9   Accreditation arrangements
The Director-General is to ensure that the arrangements referred to in section 113 (1), as amended by the Threatened Species Conservation Amendment Act 2002, and the survey standards referred to in section 113 (3A), as inserted by that Act, are instituted or approved within 18 months after the date of assent to that Act.
10   Re-appointment of members of Scientific Committee
Section 130 (1A), as inserted by the Threatened Species Conservation Amendment Act 2002, does not apply in respect of 2 consecutive periods of office served by a member of the Scientific Committee if any part of the 2 consecutive periods was served by the member before that subsection commenced.
11   Definition
In this Part:
12   Referral of proposed final determinations to Minister
The amendments to section 23, and new section 23A, as enacted by the 2004 amending Act extend to a matter pending under section 23 and not finally determined before the commencement of this clause.
13   Threatened Species Priorities Action Statements
The Director-General may exercise any function of the Director-General under Part 5A prior to the commencement of that Part, for the purpose of facilitating the adoption of a Threatened Species Priorities Action Statement on the commencement of that Part.
14   Biological Diversity Advisory Council
The members of the Biological Diversity Advisory Council holding office immediately before the repeal of sections 137–139 cease to hold office as members of the Advisory Council on that repeal (but are eligible, if otherwise qualified, for re-appointment as members of BDAC.
15   Renumbering of provisions
Anything done or omitted to be done under a provision of this Act renumbered by the Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006 is taken to have been done or omitted to be done under the corresponding provision of this Act as so renumbered.
16   Accreditation
(1)  Any person accredited under section 126O to undertake and prepare surveys and assessments as referred to in section 126O (1) (a) or (b), as in force immediately before its repeal by the Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006, is taken to have been accredited to undertake and prepare surveys and assessments as referred to in section 142B (1) (a) or (b) (as the case requires).
(2)  Any standards approved by the Director-General under section 126O by order published in the Gazette and in force immediately before the repeal of that section are taken to have been approved under section 142B.
Part 7 Biocertification of Sydney Region Growth Centres SEPP and related EPIs
17   Definitions
(1)  In this Part:
Growth Centres EPIs means the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 and any other environmental planning instrument that applies to the subject land, as in force from time to time.
relevant biodiversity measures means (subject to subclause (2)) the provisions set out as conditions of biodiversity certification in relation to the Growth Centres SEPP in the order under this Act published in the Gazette on 14 December 2007 (pages 9651–9662).
subject land means (subject to subclause (3)) the land shown edged heavy black as certified land on the maps marked “South West Growth Centre—Biodiversity Certification” and “North West Growth Centre—Biodiversity Certification” deposited in the head office of the Department.
(2)  The Minister may by order published in the Gazette amend the relevant biodiversity measures for the purposes of this Part following a review under clause 18 (4) of biodiversity certification conferred by this Part.
(3)  The Minister may by order published in the Gazette replace a map referred to in the definition of subject land in subclause (1) with a map referred to in the order that shows certified land that is within a growth centre within the meaning of the Growth Centres SEPP.
18   Biodiversity certification of Growth Centres EPIs
(1)  Biodiversity certification is conferred, by the enactment of this Part, on the Growth Centres EPIs.
(2)  The biodiversity certification conferred by this Part applies:
(a)  only to the subject land, and
(b)  to all development and activities that may be carried out under the Growth Centres EPIs, and
(c)  to all threatened species, populations and ecological communities.
(3)  The biodiversity certification conferred by this Part is not subject to any conditions.
(4)  The Minister is to undertake periodic reviews of the biodiversity certification conferred by this Part to determine whether it should be maintained or modified.
19   Effect of biodiversity certification
(1)  Section 126I applies to the subject land in the same way it applies to biodiversity certified land referred to in that section.
(2)  Subclause (1) extends to things done or omitted to be done before the substitution of this clause by the Environmental Planning and Assessment Amendment Act 2012.
20   Period of biodiversity certification
(1)  The biodiversity certification conferred by this Part remains in force (subject to this Part) until 30 June 2025.
(2)  Prior to the expiration of the biodiversity certification conferred by this Part, the Minister may, by order published in the Gazette, extend by a period of up to 10 years the period for which that certification remains in force, but only if the Minister has reviewed the Growth Centres EPIs to take account of any new listing of a species, population or ecological community or the discovery of a species, population or ecological community not previously known in an area.
(3)  The Minister must not extend the period of biodiversity certification of the Growth Centres EPIs unless, prior to granting the extension, the Minister:
(a)  by notice published in a newspaper circulating generally throughout the State, invites persons to make written submissions to the Minister on the proposed extension, and
(b)  considers any written submissions received before the closing date specified in the notice for the making of submissions (being a date that is not less than 30 days after the date the notice is first published under this subclause).
(4)  This clause does not prevent biodiversity certification of any of the subject land under Part 7AA of this Act with effect on or after the biodiversity certification conferred by this Part ceases to be in force.
21   Suspension or revocation of biodiversity certification
(1)  The Minister may, by order published in the Gazette, suspend or revoke the biodiversity certification conferred by this Part if the Minister is of the opinion that:
(a)  any relevant biodiversity measure has not been complied with, or
(b)  the Growth Centres EPIs, and any other relevant biodiversity measures, fail or will fail, as a result of any proposed amendment of the Growth Centres EPIs, to make appropriate provision for the conservation of threatened species, populations and ecological communities, or
(c)  the consent authority under the Growth Centres EPIs has failed to adequately comply with a direction by the Minister to review the Growth Centres EPIs in response to any new listing of a species, population or ecological community or the discovery of a species, population or ecological community not previously known in an area.
(2)  The suspension or revocation of the biodiversity certification conferred by this Part does not affect the validity of any development consent granted under Part 4 of the Environmental Planning and Assessment Act 1979, or any approval of an activity granted in accordance with Part 5 of that Act, before the suspension or revocation.
(3)  If the Minister suspends or revokes the biodiversity certification under this clause, the Minister may, in the order, determine the application of the suspension or revocation to anything pending under the Environmental Planning and Assessment Act 1979 at the time of the suspension or revocation.
21A   Notification of extension, suspension or revocation
(1)  Notice of the extension, suspension or revocation of the biodiversity certification conferred by this Part is to be given within 21 days:
(a)  on the website of the Department, and
(b)  to the Director-General of the Department of Planning, and
(c)  to each local council that is the council of an area of which the subject land forms part.
(2)  The Minister is to keep a register containing copies of the notice of any extension, suspension or revocation of the biodiversity certification conferred by this Part.
(3)  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 Minister.
22   Part has effect from 14 December 2007
(1)  The biodiversity certification conferred by this Part is taken to have had effect on and from 14 December 2007.
(2)  Anything done or omitted to be done on or after 14 December 2007, including under the Environmental Planning and Assessment Act 1979, that would have been validly done or omitted had the biodiversity certification conferred by this Part been in force at the time it was done or omitted, is taken to be validly done or omitted.
(3)  For the purposes of this clause, biodiversity certification conferred by this Part includes biodiversity certification conferred by this Part as a consequence of any amendment made to this Part after its enactment.
Part 8 Provisions consequent on changed arrangements for biodiversity certification
23   Definitions
(1)  In this Part:
biodiversity certified EPI means:
(a)  an EPI on which biodiversity certification was conferred by the Minister under the former biodiversity certification arrangements before the repeal of those arrangements, or
(b)  an EPI on which biodiversity certification is conferred by the Minister under the former biodiversity certification arrangements, after the repeal of those arrangements, in accordance with this Part.
established EPI means an EPI that is in force at the time a proposal is made for its biodiversity certification.
former biodiversity certification arrangements means the provisions of Division 5 of Part 7 of this Act, as in force immediately before their repeal by the Threatened Species Conservation Amendment (Biodiversity Certification) Act 2010.
new biodiversity certification arrangements means the provisions of Part 7AA of this Act, as inserted by the Threatened Species Conservation Amendment (Biodiversity Certification) Act 2010.
relevant measures means any relevant measures, as referred to in section 126G of the former biodiversity certification arrangements, on the basis of which biodiversity certification is conferred on an EPI.
(2)  In this Part, a reference to biodiversity certification conferred under the former biodiversity certification arrangements includes a reference to biodiversity certification conferred after the repeal of those arrangements in accordance with this Part.
24   Continuation of existing biodiversity certification
Any biodiversity certification conferred on an EPI (including an established EPI) by the Minister under the former biodiversity certification arrangements, before the repeal of those arrangements, continues to have effect, subject to this Part.
25   Continuation of power to confer biodiversity certification on an EPI in limited cases
(1)  Sections 126G, 126H and 126N, as in force under the former biodiversity certifications arrangements, continue to apply in respect of an existing biodiversity certification proposal.
(2)  Accordingly, the Minister may confer biodiversity certification on an EPI (including an established EPI) which is the subject of an existing biodiversity certification proposal under the former biodiversity certification arrangements as if those arrangements had not been repealed.
(3)  The order conferring biodiversity certification is to specify the relevant measures to be taken and any conditions of the certification.
(4)  An existing biodiversity certification proposal is a proposal to confer biodiversity certification on an EPI of which notice was given, or which was subject to public exhibition, under section 126G before the repeal of the former biodiversity certification arrangements.
(5)  This clause does not prevent the Minister from conferring biodiversity certification on land to which an existing biodiversity certification proposal relates under the new biodiversity certification arrangements.
26   Effect of biodiversity certification
(1)  Any development for which development consent is required under the provisions of a biodiversity certified EPI is, for the purposes of Part 4 of the Environmental Planning and Assessment Act 1979, taken to be development that is not likely to significantly affect any threatened species, population or ecological community, or its habitat.
(2)  An activity to which Part 5 of the Environmental Planning and Assessment Act 1979 applies that a biodiversity certified EPI provides can be carried out without the need for development consent is, for the purposes of that Part, taken to be an activity that is not likely to significantly affect any threatened species, population or ecological community, or its habitat.
(3)  This clause applies subject to the conditions of the biodiversity certification.
27   Period of certification and extension
(1)  Biodiversity certification of an EPI remains in force for such period as the Minister determines and specifies in the certification. If no period is specified, biodiversity certification remains in force for 10 years.
(2)  Prior to the expiration of biodiversity certification of an EPI, the Minister may, by order published in the Gazette, extend by a period of up to 10 years the period for which that certification remains in force, but only if the Minister has reviewed the EPI to take account of any new listing of a species, population or ecological community or the discovery of a species, population or ecological community not previously known in an area.
(3)  The Minister must not extend the period of biodiversity certification of an EPI unless, prior to granting the extension, the Minister:
(a)  by notice published in a newspaper circulating generally throughout the State, invites persons to make written submissions to the Minister on the proposed extension, and
(b)  considers any written submissions received before the closing date specified in the notice for the making of submissions (being a date that is not less than 30 days after the date the notice is first published under this subclause).
(4)  This clause does not prevent further biodiversity certification of the land to which an EPI applies under the new biodiversity certification arrangements with effect on or after the biodiversity certification conferred under the former biodiversity certification arrangements ceases to be in force.
28   Failure to comply with certification
Failure to take any relevant measures or to comply with a condition of biodiversity certification of an EPI does not affect the validity of the certification, but is a ground for suspension or revocation of the biodiversity certification.
29   Suspension and revocation of certification
(1)  The Minister may, by order published in the Gazette, suspend or revoke the biodiversity certification of an EPI if the Minister is of the opinion that:
(a)  any relevant measures have not been taken or conditions of the biodiversity certification have not been complied with, or
(b)  the EPI, and any other relevant measures, fail or will fail, as a result of any proposed amendment of the EPI, to make appropriate provision for the conservation of threatened species, populations and ecological communities, or
(c)  the consent authority under the EPI has failed to adequately comply with a direction by the Minister to review the EPI in response to any new listing of a species, population or ecological community or the discovery of a species, population or ecological community not previously known in an area.
(2)  The suspension or revocation of biodiversity certification does not affect:
(a)  any development consent granted under Part 4 of the Environmental Planning and Assessment Act 1979 before the suspension or revocation, or
(b)  any activity for which approval was granted, or which a determining authority started to carry out, in accordance with Part 5 of that Act before the suspension or revocation.
(3)  If the Minister suspends or revokes biodiversity certification under this clause, the Minister may, in the order, specify the application of the suspension or revocation to anything pending under the Environmental Planning and Assessment Act 1979 at the time of the suspension or revocation.
30   Notification of certification, extension, suspension or revocation
(1)  Notice of the conferral of biodiversity certification under the former biodiversity certification arrangements or of the extension, suspension or revocation of that certification is to be given within 21 days:
(a)  on the website of the Department, and
(b)  to the Director-General of the Department of Planning, and
(c)  to each local council that is the council of an area of which land to which the EPI applies forms part.
(2)  The Minister is to keep a register containing copies of any order conferring biodiversity certification under the former biodiversity certification arrangements or extending, suspending or revoking certification.
(3)  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 Minister.
31   Review of biodiversity certification
The Minister is to undertake periodic reviews of any biodiversity certification conferred by the Minister under the former biodiversity certification arrangements.
32   Continuation of accreditation arrangements
Any arrangements made under section 142B before the repeal of the former biodiversity certification arrangements, in relation to the biodiversity certification of EPIs, continue to have effect to the extent necessary to give effect to this Part.