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Contents (2016 - 63)
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Biodiversity Conservation Act 2016 No 63
Current version for 1 July 2019 to date (accessed 21 September 2019 at 14:34)
Part 2 Division 3
Division 3 Biodiversity conservation licences
2.11   Licences to do acts that would otherwise constitute offence
The Environment Agency Head may grant a licence (a biodiversity conservation licence) to a person that authorises the doing of an act that would otherwise constitute an offence under Division 1 or under any other provision of this Act.
2.12   Applications for licences
(1)  An application for a biodiversity conservation licence:
(a)  is to be made to the Environment Agency Head in the form approved by that Agency Head and containing the information required by that Agency Head, and
(b)  is to be accompanied by the standard application fee prescribed by the regulations.
(2)  If the Environment Agency Head considers that the cost of determining a particular application for a biodiversity conservation licence exceeds the standard application fee, that Agency Head may require the applicant to pay an additional amount for the determination of the application if the additional amount is calculated in accordance with a methodology published by the Environment Agency Head and does not exceed the additional reasonable costs of determining that application.
Note.
 See section 14.6 with respect to recovery, waiver or refund of fees.
(3)  The Environment Agency Head may require the applicant for a biodiversity conservation licence to provide such additional information as the Environment Agency Head may require to determine the application.
2.13   Grant or refusal and variation of licence
(1)  If an application for a biodiversity conservation licence is duly made, the Environment Agency Head may:
(a)  grant the licence, or
(b)  refuse to grant the licence.
(2)  A biodiversity conservation licence may be granted for the period specified in the licence.
(3)  The Environment Agency Head may, by notice served on the holder of a biodiversity conservation licence, vary the licence. A licence may be varied on the application of the holder of the licence or on the initiative of the Environment Agency Head.
(4)  To avoid doubt, the Environment Agency Head is not a determining authority for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 when granting or varying a biodiversity conservation licence.
(5)  The Environment Agency Head may refuse to grant a biodiversity conservation licence if the Agency Head considers that the application for the licence relates to a matter that should be dealt with by an application for an approval to clear native vegetation under Division 6 of Part 5A of the Local Land Services Act 2013.
2.14   Conditions of licences
(1)  A biodiversity conservation licence may be granted unconditionally or subject to such conditions as are specified or referred to in the licence or as are prescribed by the regulations.
(2)  The conditions that may be imposed on a biodiversity conservation licence include:
(a)  minimum standards relating to the humane treatment of animals (including minimum standards relating to the accommodation, care, rescue, rehabilitation, release or killing of animals), or
(b)  the places at which animals are to be kept, or
(c)  the keeping of records, or
(d)  conditions on any other matter that the Environment Agency Head considers appropriate in the circumstances.
(3)  The variation of a biodiversity conservation licence under section 2.13 includes the addition, removal or amendment of a condition of the licence (other than a condition prescribed by the regulations).
(4)  A person who contravenes a condition of a biodiversity conservation licence is guilty of an offence.
Maximum penalty:
(a)  in the case of a contravention that relates to an animal or plant that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community)—Tier 1 monetary penalty or imprisonment for 2 years, or both, or
(b)  in the case of a contravention that relates to an animal or plant that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or
(c)  in any other case—Tier 4 monetary penalty.
(5)  A defence to a prosecution for an offence under Division 1 extends to a prosecution for an offence under subsection (4).
(6)  A person cannot be convicted of both an offence under subsection (4) and an offence under Division 1 in respect of the same act or omission because the defence for an offence under Division 1 provided by the biodiversity conservation licence is not available as a result of the contravention of the condition of the licence.
2.15   Cancellation or suspension of licences
The Environment Agency Head may, by notice served on the holder of a biodiversity conservation licence, suspend or cancel the licence for any reason the Environment Agency Head thinks appropriate.
2.16   Reasons for, and appeals against, licensing decisions
(1)  In this section:
licensing decision means a decision of the Environment Agency Head:
(a)  to refuse an application for a biodiversity conservation licence, or
(b)  to grant a biodiversity conservation licence subject to conditions, or
(c)  to vary a biodiversity conservation licence, or
(d)  to suspend or cancel a biodiversity conservation licence.
(2)  The Environment Agency Head is required to provide a written statement of reasons for a licensing decision if the applicant or holder of the licence makes a written request for the statement of reasons.
(3)  An applicant for, or the holder of, a biodiversity conservation licence may appeal to the Land and Environment Court against a licensing decision.
(4)  The appeal is to be made within the time prescribed by the regulations and in the manner prescribed by the rules of the Court.
(5)  The regulations may provide that a failure to determine an application for a biodiversity licence within the period provided by the regulations is taken to be a refusal of the application for the purposes of this section.
(6)  The lodging of an appeal does not, except to the extent the Court otherwise directs in relation to the appeal, operate to stay the decision appealed against.
2.17   Regulations relating to licences
The regulations may make provision for or with respect to biodiversity conservation licences and, in particular, for or with respect to the following:
(a)  the assessment of applications for licences (including mandatory impact assessment requirements carried out by or on behalf of the applicant),
(b)  the eligibility of persons to be granted a licence,
(c)  different classes of licences,
(d)  the conditions of licences,
(e)  the obligations of the holders of licences,
(f)  the accreditation of providers of wildlife rehabilitation and rescue services and the services to which the accreditation relates that are to be taken to be the subject of a biodiversity conservation licence.