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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 12 November 2019 at 09:15)
Part 6 Division 1
Division 1 General scheme provisions
6.1   Definitions: Part 6
In this Part:
deferred credit retirement arrangement—see section 6.28.
Fund Manager means the Biodiversity Conservation Trust (or other public authority, body or person) appointed under Division 7 as Fund Manager in respect of the Biodiversity Stewardship Payments Fund.
holder of a biodiversity credit means a person for the time being recorded as the holder of that credit in the register of biodiversity credits under Part 9.
planning approval means:
(a)  a development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (other than a complying development certificate), or
(b)  a State significant infrastructure approval under Part 5.1 of that Act, or
(c)  a decision of a determining authority to carry out an activity, or approve the carrying out of an activity, under Part 5 of that Act if the proponent of the activity elects to obtain a biodiversity development assessment report in connection with environmental impact assessment under that Part.
restorative action means any rehabilitation or restoration action to improve biodiversity values taken on the site of any development or clearing after it has been substantially completed.
vegetation clearing approval means an approval under Division 6 (Approval for clearing native vegetation not otherwise authorised) of Part 5A of the Local Land Services Act 2013 for the clearing of native vegetation on regulated rural areas of the State, and includes any such approval for the clearing of native vegetation on other areas of the State that require such an approval under a State environmental planning policy made under the Environmental Planning and Assessment Act 1979.
6.2   Biodiversity offsets scheme
The biodiversity offsets scheme under this Act and related legislation has the following key elements:
(a)  The establishment of biodiversity stewardship sites on land by means of biodiversity stewardship agreements entered into between the Minister and the owners of the land concerned. Management actions will be required to be carried out on the sites by the owners under those agreements and will be funded from the Biodiversity Stewardship Payments Fund.
(b)  The creation of biodiversity credits in respect of those management actions to be held initially by the owners of those sites following a report by an accredited person on the biodiversity value of those management actions.
(c)  A system for those biodiversity credits to be traded (and thereby enable them to be acquired by developers or other persons who have an obligation to retire biodiversity credits under the scheme). When those credits are first transferred (or retired by the owners of the sites without being first transferred), the Biodiversity Stewardship Payments Fund is to be reimbursed for the payments to be made in future to fund the required management actions on the site that enabled the creation of those credits.
(d)  In relation to proposed development above a threshold prescribed by the regulations under this Act or proposed clearing of native vegetation not authorised without approval—biodiversity assessment and reports by accredited persons about the biodiversity values of the land concerned and the impacts on those values of the proposed development or clearing, and of the biodiversity conservation measures (including the retirement of biodiversity credits) proposed to offset the residual impact on biodiversity values after action that is required to be taken to avoid or minimise that impact. Those biodiversity assessment reports are to be taken into consideration in the determination under relevant legislation of the grant of (and biodiversity conservation actions required under) planning approvals for the proposed development or vegetation clearing approvals for the proposed clearing.
(e)  In relation to environmental impact assessment of proposed activities under Part 5 of the Environmental Planning and Assessment Act 1979—the option for proponents of those activities to use those biodiversity assessment reports and offsetting measures to comply with their obligations under that Part.
(f)  In relation to future development in an area—biodiversity assessment and reports by accredited persons about the area and biodiversity certification of that part of the area where future development may be carried out without further biodiversity impact assessment. The impact on biodiversity values of the clearing of native vegetation and the loss of habitat in the area of future development is to be offset by the retirement of biodiversity credits or other conservation measures in connection with the remainder of the area or other areas (or both).
(g)  As an alternative to any requirement under the scheme to retire biodiversity credits—the payment into the Biodiversity Conservation Fund of an amount equivalent to the cost of acquiring those credits determined in accordance with an offsets payment calculator. The Biodiversity Conservation Trust will be under an obligation to later secure biodiversity offsets from the money paid into the Fund.
(h)  The establishment of a biodiversity assessment method for use by accredited persons in biodiversity assessment and reports under the scheme.
(i)  The determination in accordance with principles prescribed by the regulations under this Act of serious and irreversible impacts on biodiversity values. The determination of such an impact by the relevant decision-maker will prevent the grant of planning approval for proposed development, but the determination will only be required to be taken into consideration in the case of State significant development or infrastructure, in the case of environmental impact assessment of certain proposed activities or in the case of proposals for the biodiversity certification of land.
6.3   Impacts on biodiversity values to which biodiversity offsets scheme applies
The impacts of actions on biodiversity values that are subject to assessment and offset under the biodiversity offsets scheme are as follows:
(a)  the impacts of the clearing of native vegetation and the loss of habitat,
(b)  the impacts of action that are prescribed by the regulations.
 See section 1.5 for a definition of the values that are biodiversity values.
6.4   Biodiversity conservation offsets under scheme
(1)  For the purposes of the biodiversity offsets scheme, the biodiversity conservation measures to offset or compensate for impacts on biodiversity values after any steps taken to avoid or minimise those impacts are as follows:
(a)  the retirement of biodiversity credits,
(b)  other actions that benefit the biodiversity values of the impacted land or other biodiversity values.
(2)  The regulations may make provision with respect to the following (offset rules):
(a)  the class of biodiversity credits to be retired,
(b)  the other actions that qualify or do not qualify as biodiversity conservation measures,
(c)  the circumstances in which biodiversity conservation measures may include a combination of the retirement of biodiversity credits and other actions.
Any such regulation may apply, adopt or incorporate a publication of the Environment Agency Head as in force from time to time.
(3)  The other actions that benefit biodiversity values include:
(a)  actions to conserve or enhance biodiversity (including threatened species and ecological communities), and
(b)  actions for the purposes of research or education in relation to biodiversity, and
(c)  actions under the Biodiversity Conservation Program under Part 4 or other government programs or policies for the conservation or enhancement of biodiversity.
(4)  The regulations may set out the circumstances in which the ordinary rules for the determination of the number and class of biodiversity credits required as biodiversity offsets may be varied.
6.5   Serious and irreversible impacts on biodiversity values
(1)  The determination of serious and irreversible impacts on biodiversity values for the purposes of the biodiversity offsets scheme is to be made in accordance with principles prescribed by the regulations.
(2)  The Environment Agency Head may provide guidance on the determination of any such serious and irreversible impacts, and for that purpose may publish, from time to time, criteria to assist in the application of those principles and lists of potential serious and irreversible impacts.
 For proposed development—see section 7.16; for proposed clearing only—see section 60ZF of the Local Land Services Act 2013; for proposed biodiversity certification—see section 8.8.
6.6   Miscellaneous provisions relating to biodiversity offsets scheme
(1)  The Minister, the Environment Agency Head, the Biodiversity Conservation Trust and other public authorities may participate in the biodiversity offsets scheme, including by purchasing, holding, transferring and retiring biodiversity credits.
(2)  The regulations may make further provision for or with respect to the biodiversity offsets scheme, including making provision:
(a)  for the retirement of biodiversity credits, and
(b)  for arrangements between participants in the biodiversity offsets scheme or between those participants and other persons in connection with the scheme, and
(c)  for the resolution of disputes arising in connection with the operation of the scheme, and
(d)  for the provision of information by authorities or other persons involved in the administration or operation of the scheme.
(3)  The regulations may make provision for or with respect to conservation brokers, being persons who provide or offer to provide any of the following services (whether or not for fee or reward):
(a)  the identification of potential biodiversity stewardship sites or management actions,
(b)  the negotiation of a biodiversity stewardship agreement on behalf of a land owner,
(c)  assistance with buying or selling biodiversity credits,
(d)  any other related service in connection with the biodiversity offsets scheme.