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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 15:20)
Part 5 Division 4
Division 4 Wildlife refuge agreements
5.27   Biodiversity Conservation Trust may enter into wildlife refuge agreements
(1)  The Biodiversity Conservation Trust may enter into an agreement relating to land with the owner of the land for the purpose of conserving or studying the biodiversity of the land (a wildlife refuge agreement).
(2)  Land may be subject to a single wildlife refuge agreement 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 at the time the agreement is entered into).
(3)  Land that comprises only part of one or more parcels of land may be subject to a wildlife refuge agreement.
Note.
 Unlike a conservation agreement that is in force in perpetuity, the land subject to a wildlife refuge agreement is not subject to an exemption from the payment of land tax or local council rates.
5.28   General provisions relating to wildlife refuge agreements
(1)  The Biodiversity Conservation Trust is not to enter into a wildlife refuge agreement relating to land unless:
(a)  all the owners of the land are parties to the agreement or have consented in writing 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 wildlife refuge 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 Trust has consulted with the person entitled to the benefit of the covenant about the terms of the agreement, and
(e)  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 Biodiversity Conservation Trust may enter into a wildlife refuge 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 wildlife refuge agreement is entered into under subsection (2) by a public authority that 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 Biodiversity Conservation Trust is not to enter into a wildlife refuge 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 Biodiversity Conservation Trust is not to enter into a wildlife refuge agreement for Crown land except with the consent of the Minister administering the Crown Land Management Act 2016.
5.29   Content of wildlife refuge agreements
(1)  A wildlife refuge agreement may contain any of the following terms, binding on the owner from time to time of the land to which it applies:
(a)  restricting development on the land,
(b)  requiring the owner to refrain from or not to permit specified activities on the land,
(c)  requiring the owner to carry out specified activities or do specified things,
(d)  requiring the owner to permit access to the land by specified persons,
(e)  requiring the owner to contribute towards costs incurred which relate to the land or the agreement,
(f)  specifying the manner in which any money provided to the owner under the agreement is to be applied by the owner,
(g)  requiring the owner to repay money paid to the owner under the agreement if a specified breach of the agreement occurs,
(h)  providing for any other matter relating to the conservation or enhancement of the land.
(2)  A wildlife refuge agreement may contain terms, binding on the Biodiversity Conservation Trust:
(a)  requiring the Trust to provide financial assistance, technical advice or other assistance, or
(b)  requiring the Trust to carry out specified activities or do specified things, or
(c)  providing for any other matter relating to the conservation or enhancement of the land.
5.30   Duration and variation of wildlife refuge agreements
(1)  A wildlife refuge agreement has effect from a day, or on the happening of an event, specified in the agreement.
(2)  A wildlife refuge agreement may be varied by a subsequent agreement between the Biodiversity Conservation Trust and all the owners of the land at the time of the variation. The area to which the wildlife refuge agreement applies may be increased or reduced by any such variation of the agreement.
(3)  A wildlife refuge agreement has effect until it is terminated:
(a)  by a subsequent agreement between the Biodiversity Conservation Trust and all the owners of the land at the time of the termination, or
(b)  subject to the terms of the agreement, by the Trust, by notification in the public register of private land conservation agreements under Part 9, without the consent of the owners of the land, or by any of those owners by notice in writing served on the Trust.
(4)  The Minister may direct the Biodiversity Conservation Trust to vary or terminate a wildlife refuge agreement if a mining or petroleum authority is or has been granted in respect of the land 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 agreement, or
(b)  will adversely affect biodiversity protected by the agreement.
The Trust is required to comply with the Minister’s direction.
(5)  The owner of land subject to a wildlife refuge agreement is not entitled to any compensation from the Minister or the Biodiversity Conservation Trust as a result of the variation or termination of the agreement.
(6)  Subsection (5) 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.
(7)  The regulations may authorise the Biodiversity Conservation Trust and the owners of the land concerned to make minor variations to a wildlife refuge agreement without any consent or consultation required by this section.
5.31   Wildlife refuge agreements may be registered and run with land
Sections 5.12 and 5.13 apply to wildlife refuge agreements in the same way as they apply to biodiversity stewardship agreements. Those sections apply as if references to the Minister were references to the Biodiversity Conservation Trust.
5.32   Proposals by public authorities affecting land subject to wildlife refuge agreements
(1)  A public authority must not carry out development on land subject to a wildlife refuge agreement unless:
(a)  it has given written notice of the proposed development to the Minister and the owner of the land, 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 wildlife refuge agreement nor adversely affect biodiversity protected by the agreement, or
(b)  there is no practical alternative to the carrying out of the development, or
(c)  the development is required for an essential public purpose or for a purpose of special significance to the State.
(3)  The Biodiversity Conservation Trust, if directed to do so by the Minister, is to vary or terminate the wildlife refuge agreement, by notification in the public register of private land conservation agreements under Part 9, without the consent of the owners of the land if consent to development is granted under this section and the Minister considers that the variation or termination is necessary to enable the public authority to carry out the development.
(4)  If a wildlife refuge agreement is varied under this section without the approval of the owner of the land subject to the agreement, the owner may terminate the agreement by notice in writing to the Biodiversity Conservation Trust.
(5)  The owner of land subject to a wildlife refuge agreement is not entitled to any compensation as a result of the variation or termination of the agreement under this section.
(6)  Subsection (5) 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.
(7)  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.
(8)  Section 5.17 (Resolution of certain disputes) applies to disputes under this section in the same way as it applies to disputes referred to in that section.
(9)  This section does not apply:
(a)  to any part of land 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 land if the public authority is the owner of the land and the proposed development is not inconsistent with the terms of the wildlife refuge 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.
5.33   Activities authorised by mining or petroleum authorities not affected by wildlife refuge agreement
Nothing in this Division:
(a)  prevents the grant of a mining or petroleum authority in respect of land subject to a wildlife refuge agreement in accordance with the Mining Act 1992 or the Petroleum (Onshore) Act 1991, or
(b)  prevents the carrying out, on or in respect of land subject to a wildlife refuge agreement, of any activity authorised by a mining or petroleum authority in accordance with the Mining Act 1992 or the Petroleum (Onshore) Act 1991.