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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 13 November 2019 at 06:23)
Part 5 Division 2
Division 2 Biodiversity stewardship agreements
5.5   Minister and land owners may enter into biodiversity stewardship agreements
(1)  The Minister may enter into an agreement relating to land with all the owners of the land for the purpose of establishing a biodiversity stewardship site (a biodiversity stewardship agreement).
(2)  A biodiversity stewardship agreement may designate any eligible land to which the agreement relates to be a biodiversity stewardship site for the purposes of this Act.
(3)  The Minister must consult with the Minister for Planning and the Minister for Industry, Resources and Energy before entering into any biodiversity stewardship agreement.
5.6   Content of biodiversity stewardship agreements
(1)  A biodiversity stewardship agreement may contain any of the following terms, binding on the owners from time to time of the land:
(a)  requiring or authorising the owners to carry out specified management actions on the land,
(b)  creating (or providing for the creation of) the number and class of biodiversity credits in respect of any of those management actions in accordance with the biodiversity assessment method,
(c)  providing for the timing of the creation of biodiversity credits and their release for sale,
(d)  providing for the transfer or retirement of the biodiversity credits created,
(e)  requiring the owners to carry out any management action in perpetuity, unless otherwise specified (even if a biodiversity credit has already been created in respect of the action or has been transferred or retired),
(f)  requiring the owners to make additional payments to the Biodiversity Stewardship Payments Fund,
(g)  restricting development on the biodiversity stewardship site,
(h)  requiring the owners to permit persons to access the biodiversity stewardship site and to allow them to take any specified action on the land,
(i)  providing for monitoring, reporting and audit requirements,
(j)  providing for the entitlement of the owners to payments from the Biodiversity Stewardship Payments Fund,
(k)  specifying the manner in which any money provided to the owners under the agreement is to be applied by the owners,
(l)  requiring the owners to repay money paid to the owners under the agreement if a specified breach of the agreement occurs,
(m)  specifying the remedial measures that must be taken in the event that any contingency that has a negative impact on the biodiversity values protected by the agreement or that prevents or disrupts the continuation of a management action in respect of which biodiversity credits are in force or have been retired,
(n)  providing for any other matter relating to the biodiversity stewardship site.
(2)  A biodiversity stewardship agreement may contain any of the following terms, binding on the Minister:
(a)  requiring the Minister to direct that payments be made from the Biodiversity Stewardship Payments Fund to the owner of the land,
(b)  requiring the Minister to provide technical advice or other assistance,
(c)  requiring the Minister to carry out specified activities or do specified things,
(d)  providing for any other matter relating to the biodiversity stewardship site.
(3)  If the biodiversity assessment method is amended or replaced after a biodiversity stewardship agreement is entered into, the biodiversity stewardship agreement prevails to the extent of any inconsistency between the agreement and the provisions of the biodiversity assessment method as amended or replaced.
5.7   Land eligible to be designated as biodiversity stewardship site
(1)  Land may be designated as a single biodiversity stewardship site even if the land consists of separate parcels of land and whether or not the parcels are adjacent (but only if the land is owned by the same person or persons).
(2)  Land that comprises only part of one or more parcels of land may be designated as a biodiversity stewardship site.
(3)  The regulations may set out criteria for land to be eligible to be designated as a biodiversity stewardship site by a biodiversity stewardship agreement.
(4)  The fact that land designated as a biodiversity stewardship site becomes, after the agreement is entered into, land excluded from being designated as a biodiversity stewardship site does not affect the validity of the agreement (or any subsequent variation of the agreement).
5.8   Applications to enter into biodiversity stewardship agreements
(1)  A request to the Minister to enter into a biodiversity stewardship agreement is to be made by application of an owner of the site proposed to be designated as a biodiversity stewardship site.
(2)  The application:
(a)  is to be in the form approved by the Minister and containing the information required by that form, and
(b)  is to be accompanied by a processing fee prescribed by the regulations.
The Minister may require the applicant to provide such additional information as the Minister may require to determine the application.
Note.
 See section 14.6 with respect to recovery, waiver or refund of fees.
(3)  The application is to be accompanied by a biodiversity stewardship site assessment report prepared by an accredited person:
(a)  that assesses the biodiversity values of the proposed site in accordance with the biodiversity assessment method, and
(b)  that sets out the management actions proposed to be carried out on the proposed site, and
(c)  that specifies in accordance with the biodiversity assessment method the number and class of biodiversity credits that may be created in respect of those management actions.
(4)  The Minister may require any owner of the proposed site to provide land management plans relating to the site.
(5)  The Minister may decline a request from an owner of a site to enter into a biodiversity stewardship agreement if the Minister considers that any owner of the site is not a fit and proper person to enter into, and fulfil the obligations imposed by, the agreement. The regulations may make provision with respect to whether an owner is such a fit and proper person.
(6)  The regulations may prescribe other grounds on which the Minister may decline a request to enter into a biodiversity stewardship agreement.
5.9   Requirements relating to entering into biodiversity stewardship agreements
(1)  The Minister must not enter into a biodiversity stewardship agreement relating to land unless:
(a)  all the owners of the land are parties to the agreement, and
(b)  where the land (not being Crown land) is subject to a residential tenancy agreement or other lease, the tenant or the lessee has consented in writing to the biodiversity stewardship agreement, and
(c)  where the land is subject to a mortgage or charge, the mortgagee or chargee has consented in writing to the agreement, and
(d)  where the land is subject to a covenant, the Minister has consulted with the person entitled to the benefit of the covenant about the terms of the agreement, and
(e)  where the land is the subject of a mining lease or mineral claim under the Mining Act 1992 or a production lease under the Petroleum (Onshore) Act 1991, the holder of the lease or claim has consented in writing to the agreement, and
(f)  where the land is the subject of any mining or petroleum authority not referred to in paragraph (e), the Minister has consulted with the holder of the mining or petroleum authority about the terms of the agreement, and
(g)  where the land is owned by a Local Aboriginal Land Council, the New South Wales Aboriginal Land Council has consented in writing to the agreement.
(2)  The Minister may enter into a biodiversity stewardship agreement relating to land that is Crown land or lands of the Crown:
(a)  with a public authority (not being a Public Service agency) that owns or has the control and management of the land, or
(b)  if the land is under the control and management of a Public Service agency, with the responsible Minister.
(3)  If a biodiversity stewardship agreement is entered into under subsection (2) by a public authority that, or responsible Minister who, is not the owner of the land concerned:
(a)  the agreement is taken to have been entered into on behalf of the owner of the land, and
(b)  a reference in this Division to the owner of the land (however expressed) includes, while a public authority has the control and management of the land, a reference to the public authority that has that control and management and, if the public authority is a Public Service agency, the responsible Minister.
(4)  The Minister must not enter into a biodiversity stewardship agreement relating to Crown-timber lands within the meaning of the Forestry Act 2012 except with the consent of the Minister administering that Act.
(5)  The Minister must not enter into a biodiversity stewardship agreement for Crown land except with the consent of the Minister administering the Crown Land Management Act 2016.
5.10   Duration of biodiversity stewardship agreements
(1)  A biodiversity stewardship agreement has effect from a day, or on the happening of an event, specified in the agreement.
(2)  A biodiversity stewardship agreement has effect in perpetuity, unless:
(a)  it is terminated by consent of the Minister and all the owners (for the time being) of the biodiversity stewardship site concerned, or
(b)  it is terminated by the Minister, without the consent of the owners, and that termination is authorised by this Act.
(3)  The Minister must not consent to the termination of a biodiversity stewardship agreement unless such measures as may be required by the Minister are taken by the owner of the biodiversity stewardship site to offset any negative impact of the termination on the biodiversity values protected by the agreement. This subsection does not apply if voluntary termination of the agreement is permitted under this section.
(4)  For the purposes of subsection (3), the required measures may include one or more of the following:
(a)  the cancellation of biodiversity credits created in relation to the biodiversity stewardship site,
(b)  the retirement of biodiversity credits created in relation to another biodiversity stewardship site,
(c)  entering into a biodiversity stewardship agreement for the purpose of establishing another biodiversity stewardship site.
(5)  The Minister must consent to the termination of a biodiversity stewardship agreement on the request of the owner of the biodiversity stewardship site if voluntary termination of the agreement is permitted under this section.
(6)  For the purposes of this section, voluntary termination of a biodiversity stewardship agreement is permitted only if the owner of the biodiversity stewardship site requests the termination of the agreement within 3 months after it is entered into, or after the expiry of 5 years after the agreement has been entered into, and at the time of termination:
(a)  no biodiversity credits have been created in respect of the biodiversity stewardship site, or
(b)  in a case where biodiversity credits have been created (and whether or not transferred)—none of the credits created have been retired and all the credits are cancelled by the Environment Agency Head with the consent of the holder of the credits.
(7)  A request for the consent of the Minister to the termination of a biodiversity stewardship agreement is to be made by application of the owner of the site:
(a)  in the form approved by the Minister and accompanied by the information required by that form, and
(b)  accompanied by a fee prescribed by the regulations.
The Minister may require the applicant to provide such additional information as the Minister may require to determine the application.
Note.
 See section 14.6 with respect to recovery, waiver or refund of fees.
5.11   Variation of biodiversity stewardship agreements
(1)  A biodiversity stewardship agreement may be varied:
(a)  by a subsequent agreement between the Minister and the owners (for the time being) of the biodiversity stewardship site concerned, or
(b)  by the Minister, without the consent of the owners, where that variation is authorised by this Act.
The area of the biodiversity stewardship site may be increased or reduced by any such variation of the agreement.
(2)  The Minister must not agree to any variation of a biodiversity stewardship agreement with the owners of the biodiversity stewardship site unless the persons who would have been required to consent or be consulted at the time of the variation if it were a new agreement have consented to, or been consulted about, the variation.
(3)  The Minister must not agree to any variation of a biodiversity stewardship agreement unless satisfied that the variation does not have a negative impact on the biodiversity values protected by the agreement or that other measures required by the Minister have been taken by the owner of the biodiversity stewardship site to offset any such negative impact.
(4)  For the purposes of subsection (3), the required measures may include one or more of the following:
(a)  the cancellation of biodiversity credits created in relation to the biodiversity stewardship site,
(b)  the retirement of biodiversity credits created in relation to another biodiversity stewardship site,
(c)  payments into the Biodiversity Stewardship Payments Fund.
Note.
 Division 6 of Part 6 enables a person who is required under this section to retire biodiversity credits to make a payment instead to the Biodiversity Conservation Fund of the value of the credits in accordance with the offsets payment calculator.
(5)  A request for the agreement of the Minister to the variation of a biodiversity stewardship agreement is to be made by application of the owner of the site:
(a)  in the form approved by the Minister and accompanied by the information required by that form, and
(b)  accompanied by a fee prescribed by the regulations.
The Minister may require the applicant to provide such additional information as the Minister may require to determine the application.
Note.
 See section 14.6 with respect to recovery, waiver or refund of fees.
(6)  If the variation of a biodiversity stewardship agreement requires the preparation of a plan of survey relating to an alteration in the area of the biodiversity stewardship site, the applicant is to provide or pay for the provision of the plan of survey.
(7)  Unless the Minister otherwise determines in accordance with the regulations, an application to vary a biodiversity stewardship agreement is to be accompanied by a biodiversity stewardship site assessment report prepared by an accredited person:
(a)  that assesses the biodiversity values of the proposed site (as proposed to be varied) in accordance with the biodiversity assessment method, and
(b)  that sets out any proposed variation in the management actions carried out on the proposed site, and
(c)  that specifies in accordance with the biodiversity assessment method any additional number and class of biodiversity credits that may be created in respect of those management actions.
(8)  The regulations may authorise the Minister and the owners of the biodiversity stewardship site concerned to make minor variations to the biodiversity stewardship agreement without any consent or consultation required by this section.
5.12   Registration of biodiversity stewardship agreements
(1)  On being notified by the Minister that a biodiversity stewardship agreement has been entered into, or that any such agreement has been re-issued, varied or terminated, the Registrar-General must:
(a)  in the case of a biodiversity stewardship agreement relating to land under the Real Property Act 1900—register the agreement, variation or termination by making an entry concerning the agreement, variation or termination in any folio of the Register kept under that Act that relates to that land, or
(b)  in the case of a biodiversity stewardship agreement relating to land not under the Real Property Act 1900:
(i)  register the agreement, variation or termination in the General Register of Deeds kept under Division 1 of Part 23 of the Conveyancing Act 1919, and
(ii)  if appropriate, make an entry concerning the agreement, variation or termination in any official record relating to Crown land that relates to that land.
(2)  A biodiversity stewardship agreement relating to land under the Real Property Act 1900 about which an entry is made in a folio and that is in force is an interest recorded in the folio for the purposes of section 42 of that Act.
5.13   Agreements to run with land and re-issue etc of agreements in certain cases
(1)  A biodiversity stewardship agreement that has been registered by the Registrar-General and that is in force is binding on, and enforceable by and against, the successors in title to the owners who entered into the agreement and those successors in title are taken to have notice of the agreement.
(2)  This section extends to successors in title of part only of the land to which a biodiversity stewardship agreement applies.
(3)  If there are different successors in title to different parts of the land, the regulations may make provision with respect to obligations and entitlement under this Act of the successors in title in relation to the biodiversity stewardship agreement, including with respect to the variation of:
(a)  biodiversity credits created in relation to the land, and
(b)  obligations to carry out management actions on the land, and
(c)  payments with respect to those management actions.
(4)  In this section:
part of land includes a different interest in the land.
successors in title includes a lessee, mortgagee, chargee, covenant chargee or other person, in possession of a biodiversity stewardship site pursuant to a lease, mortgage, charge, positive covenant or other encumbrance entered into before or after the registration of the biodiversity stewardship agreement.
5.14   Application of Planning Act
(1)  Management actions under a biodiversity stewardship agreement for which biodiversity credits may be created (including on declared areas of outstanding biodiversity value) are taken to be exempt development for the purposes of the Environmental Planning and Assessment Act 1979. The regulations may exclude any management actions from the operation of this subsection.
(2)  For the purposes of section 76 (3) of that Act, a reference to the environmental planning instrument in respect of any such exempt development is taken to be a reference to the biodiversity stewardship agreement.
(3)  A biodiversity stewardship agreement is not a regulatory instrument for the purposes of section 28 of that Act.
5.15   Agreement does not prevent creation of national parks and other reservations
(1)  The fact that land is a biodiversity stewardship site does not prevent the land from being reserved under Part 4 or Part 4A of the National Parks and Wildlife Act 1974.
(2)  On a biodiversity stewardship site being so reserved, the land concerned ceases to be a biodiversity stewardship site and the biodiversity stewardship agreement applicable to the land is terminated.
5.16   Proposals by public authorities affecting biodiversity stewardship sites
(1)  A public authority must not carry out development on a biodiversity stewardship site unless:
(a)  it has given written notice of the proposed development to the Minister and the owner of the biodiversity stewardship site, and
(b)  it has received written notice from the Minister consenting to the development.
(2)  The Minister may consent to the development only if:
(a)  the Minister is of the opinion that the development will neither adversely affect any management actions that may be carried out on the land under the biodiversity stewardship agreement nor adversely affect the biodiversity values protected by the agreement, or
(b)  the Minister is satisfied that any adverse effect of the development on biodiversity values (including any future improvement to biodiversity values that would otherwise be achieved by the management actions on the site) will be offset by the retirement of biodiversity credits by the public authority, or
(c)  the development is required for an essential public purpose or for a purpose of special significance to the State.
(3)  The Minister may, as a condition of granting consent under this section, direct the public authority to retire biodiversity credits of a number and class (if any) specified by the Minister.
Note.
 Division 6 of Part 6 enables a person who is required under this section to retire biodiversity credits to make a payment instead to the Biodiversity Conservation Fund of the value of the credits in accordance with the offsets payment calculator.
(4)  The Minister may approve an arrangement under which:
(a)  the retirement of some or all of the biodiversity credits is deferred pending the completion of restorative actions that will restore or improve the biodiversity values affected by the development, and
(b)  the biodiversity credits the retirement of which is deferred pending the completion of those actions are required to be transferred to the Minister.
(5)  Section 6.28 applies in respect of any such arrangement as if it were a deferred credit retirement arrangement under that section.
(6)  The Minister may, by notification in the public register of private land conservation agreements under Part 9, vary or terminate the biodiversity stewardship agreement relating to a biodiversity stewardship site without the consent of the owner of the site if consent to development is granted under this section and the variation or termination is necessary to enable the public authority to carry out the development.
(7)  If a biodiversity stewardship agreement is varied under this section without the approval of the owner of the biodiversity stewardship site, the owner may terminate the agreement by notice in writing to the Minister, but only if:
(a)  no biodiversity credits have been created in respect of the biodiversity stewardship site, or
(b)  in a case where biodiversity credits have been created (and whether or not transferred)—none of the credits created have been retired and all the credits are cancelled by the Environment Agency Head with the consent of the holder of the credits.
(8)  The owner of a biodiversity stewardship site is not entitled to any compensation as a result of the variation or termination of an agreement under this section.
(9)  Subsection (8) does not affect any right to compensation the owner may have under the Land Acquisition (Just Terms Compensation) Act 1991 or any other Act in respect of the development.
(10)  The consent of the Minister under this section is not an approval for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979.
(11)  This section does not apply:
(a)  to any part of a biodiversity stewardship site that is a wilderness area within the meaning of the Wilderness Act 1987, or
(b)  in respect of development proposed to be carried out by a public authority on a biodiversity stewardship site if the public authority is the owner of the site and the proposed development is not inconsistent with the terms of the biodiversity stewardship agreement, or
(c)  in respect of development that comprises emergency or routine work by a public authority of a kind that the authority and the Minister have agreed to exclude from the application of this section.
5.17   Resolution of certain disputes
(1)  If a dispute arises as to the failure of the Minister to consent to a development proposal of a public authority under section 5.16 (Proposals by public authorities affecting biodiversity stewardship sites), or as to the conditions of any consent granted or proposed to be granted under that section by the Minister, a party to the dispute may submit that dispute to the Premier for settlement.
(2)  On the submission of a dispute to the Premier, the Premier may:
(a)  appoint a Commissioner of Inquiry to hold an inquiry and make a report to the Premier, or
(b)  hold an inquiry into the dispute.
(3)  After the completion of the inquiry, and after considering any report, the Premier may make such order with respect to the dispute, having regard to the public interest and to the circumstances of the case, as the Premier thinks fit.
(4)  An order made by the Premier may direct the payment of any costs or expenses of or incidental to the holding of the inquiry.
(5)  A Minister or public authority is to comply with an order given under this section and is, despite the provisions of any Act, taken to be empowered to comply with any such order.
5.18   Prospecting and mining on biodiversity stewardship sites
(1)  The Minister may, by notification in the public register of private land conservation agreements under Part 9, vary or terminate a biodiversity stewardship agreement without the consent of the owner of the biodiversity stewardship site if a mining or petroleum authority is or has been granted in respect of the site and the Minister is of the opinion that the activity authorised by the mining or petroleum authority:
(a)  will adversely affect any management actions that may be carried out on the land under the biodiversity stewardship agreement, or
(b)  will adversely affect the biodiversity values protected by the biodiversity stewardship agreement.
(2)  If the Minister varies or terminates the biodiversity stewardship agreement under this section, the Minister may, by order in writing to the holder of the mining or petroleum authority, direct the holder to retire biodiversity credits of a number and class (if any) specified by the Minister within a time specified in the order.
Note.
 Division 6 of Part 6 enables a person who is required under this section to retire biodiversity credits to make a payment instead to the Biodiversity Conservation Fund of the value of the credits in accordance with the offsets payment calculator.
(3)  A direction may be given to a person under subsection (2) only if biodiversity credits have already been created in respect of management actions that were carried out or proposed to be carried out on the biodiversity stewardship site and have been transferred to any person or retired.
(4)  The maximum number of biodiversity credits that the holder of the mining or petroleum authority may be required to retire under the direction is the number of biodiversity credits that have been created in respect of the biodiversity stewardship site.
(5)  An obligation to retire credits under this section does not affect any obligation to retire credits in connection with any approval to carry out development in connection with the mining or petroleum authority.
(6)  A person must not, without reasonable excuse, fail to comply with a direction under subsection (2).
Maximum penalty: Tier 1 monetary penalty.
(7)  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.
(8)  A court that finds a person guilty of an offence under subsection (6) may, in addition to or in substitution for any monetary penalty for the offence, by order direct the person to retire, in accordance with this Act, biodiversity credits of a specified number and class (if applicable) within a time specified in the order.
(9)  If a biodiversity stewardship agreement is varied under this section without the approval of the owner of the biodiversity stewardship site, the owner may terminate the agreement by notice in writing to the Minister, but only if:
(a)  no biodiversity credits have been created in respect of the biodiversity stewardship site, or
(b)  in a case where biodiversity credits have been created (and whether or not transferred)—none of the credits created have been retired and all the credits are cancelled by the Environment Agency Head with the consent of the holder of the credits.
(10)  The owner of a biodiversity stewardship site is not entitled to any compensation from the Minister as a result of the variation or termination of an agreement under this section.
(11)  The regulations may make provision for or with respect to the reimbursement of the owner of the biodiversity stewardship site or the Minister by the holder of the mining or petroleum authority for the costs incurred by the owner or Minister in establishing the site.
(12)  Subsection (10) does not affect any right to compensation the owner may have under the Mining Act 1992, the Petroleum (Onshore) Act 1991 or any other legislation in respect of the grant of the mining or petroleum authority or to activities carried out under the authority.
5.19   Activities authorised by mining or petroleum authorities not affected by biodiversity stewardship agreement
Nothing in this Division:
(a)  prevents the grant of a mining or petroleum authority in respect of a biodiversity stewardship site in accordance with the Mining Act 1992 or the Petroleum (Onshore) Act 1991, or
(b)  prevents the carrying out, on or in respect of a biodiversity stewardship site, of any activity authorised by a mining or petroleum authority in accordance with the Mining Act 1992 or the Petroleum (Onshore) Act 1991.
Note.
 For provisions relating to the enforcement of biodiversity stewardship agreements:
(a)  see section 13.15 for civil enforcement by any person to remedy or restrain breach, and
(b)  see section 11.26 for order of Minister to rectify breach, and
(c)  see section 11.25 for direction to retire biodiversity credits.