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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 18 November 2019 at 09:25)
Part 6 Division 5
Division 5 Retirement of biodiversity credits
6.27   Retirement of biodiversity credits
(1)  The holder of a biodiversity credit that is in force may apply in writing to the Environment Agency Head to retire the credit.
(2)  An application to retire a biodiversity credit may be made by the holder of the credit:
(a)  for the purpose of complying with a requirement to retire biodiversity credits of a planning approval or a vegetation clearing approval, or
(b)  for the purpose of complying with a requirement to retire biodiversity credits of a planning agreement under section 93F of the Environmental Planning and Assessment Act 1979, or
(c)  for the purpose of complying with a requirement to retire biodiversity credits of a biodiversity certification of land, or
(d)  for the purpose of complying with a requirement of the Minister to retire biodiversity credits under section 11.25 or another provision of this Act, or
(e)  for the purpose of complying with an order of a court, or
(f)  on a voluntary basis, or
(g)  in any other circumstances authorised by this Act or the regulations.
(3)  An application to retire a biodiversity credit must:
(a)  be made in the form approved by the Environment Agency Head and contain the information required by that form, and
(b)  be accompanied by the fee prescribed by the regulations.
The Environment Agency Head may require the applicant to provide such additional information as the Environment Agency Head may require to determine the application.
(4)  The Environment Agency Head may refuse an application to retire a biodiversity credit if:
(a)  the application has not been duly made, or
(b)  the Environment Agency Head is satisfied that an obligation to undertake management actions under the biodiversity stewardship agreement that enabled the creation of the credit has not been complied with (but only if the credit is sought to be retired without being first transferred), or
(c)  any payment required to be made to the Biodiversity Stewardship Payments Fund under section 6.21 (Payment to Fund on first transfer of biodiversity credit or on retirement without first transfer) in relation to the biodiversity credit has not been made, or
(d)  any payment required to be made to the Minister under this Part in relation to the biodiversity credit for costs relating to the biodiversity offsets scheme has not been made, or
(e)  the regulations authorise the Environment Agency Head to refuse the application.
(5)  The Environment Agency Head retires a biodiversity credit by making a recording in the register of biodiversity credits under Part 9, in relation to the biodiversity credit concerned, that indicates that the credit has been retired.
(6)  The retirement of a biodiversity credit does not affect any requirement imposed on the owner of a biodiversity stewardship site under a biodiversity stewardship agreement. In particular, it does not affect any requirement that the owner carry out management actions in respect of the land in relation to which the credit was created.
(7)  A biodiversity credit that has been suspended by the Environment Agency Head may not be retired during any period in which the suspension has effect.
6.28   Deferred credit retirement arrangements
(1)  With the approval of the Environment Agency Head, a requirement to retire biodiversity credits under this or any other Act (including under an instrument, approval or agreement) in relation to proposed development, activity or clearing may be subject to an arrangement (a deferred credit retirement arrangement) under which:
(a)  the requirement to retire some or all of the biodiversity credits is deferred pending the completion of restorative actions that will be taken to restore or improve the biodiversity values affected by the development, activity or clearing or the completion of other actions prescribed by the regulations, and
(b)  the biodiversity credits whose retirement is deferred pending the completion of those restorative or other actions are required to be transferred to the Environment Agency Head.
(2)  Subject to this Act, the Environment Agency Head is to hold any such biodiversity credits under a deferred credit retirement arrangement pending completion of the relevant restorative or other actions and is not permitted to transfer, retire or otherwise deal with the biodiversity credits.
(3)  The biodiversity assessment method may make provision with respect to deferred credit retirement arrangements, including:
(a)  the types of restorative actions in respect of which deferred credit retirement arrangements are available, and
(b)  the number and class of biodiversity credits that may be transferred back to a former holder of biodiversity credits (or to any person who acquires the rights of a former holder to apply for such a transfer) on completion of those actions.
(4)  The provisions of this Act relating to the cancellation or suspension of biodiversity credits, and the payment of contributions towards the administration of the biodiversity offsets scheme, apply in respect of a biodiversity credit transferred to the Environment Agency Head under a deferred credit retirement arrangement as if a reference to the holder of the biodiversity credit were a reference to the former holder of the biodiversity credits.
(5)  A former holder of a biodiversity credit may, on the completion of any restorative or other actions the subject of a deferred credit retirement arrangement, apply to the Environment Agency Head (subject to and in accordance with the regulations) for the transfer to the former holder of any biodiversity credits held by the Agency Head under that arrangement.
(6)  The Environment Agency Head:
(a)  is to transfer to the former holder of biodiversity credits those biodiversity credits required under the deferred credit retirement arrangement to be so transferred, and
(b)  may retire any remaining biodiversity credits held by the Agency Head under the deferred credit retirement arrangement after giving at least 28 days notice of the proposed retirement to the former holder of the biodiversity credits.
The Environment Agency Head is not to transfer a biodiversity credit back to the former holder of the credit without the concurrence of the person or body that imposed the requirement for the retirement of the credit.
(7)  If a deferred credit retirement arrangement provides for a period at the end of which the retirement arrangement ceases to have effect, the Environment Agency Head may, at the end of that period, retire any biodiversity credits transferred to and held by the Agency Head under the arrangement after giving at least 28 days notice of the proposed retirement to the former holder of the biodiversity credits.
(8)  In this section:
former holder of a biodiversity credit means:
(a)  the person who held the biodiversity credit immediately before the biodiversity credit was transferred to the Environment Agency Head under a deferred credit retirement arrangement, or
(b)  a person who acquires the rights of that person to apply for a transfer under this section in respect of the biodiversity credit.
6.29   Minister may require retirement of credits if not retired in accordance with credit retirement requirement
(1)  The Minister may, by order in writing to a person, direct the person to retire biodiversity credits of a specified number and class (if applicable) within a time specified in the order if:
(a)  the person is subject to a requirement to retire biodiversity credits under this or any other Act (including under an instrument, approval or agreement), and
(b)  the biodiversity credits have not been retired in accordance with that requirement.
(2)  A person must not, without reasonable excuse, fail to comply with a direction under this section.
Maximum penalty: Tier 1 monetary penalty.
(3)  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.
Note.
 Division 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)  A court that finds a person guilty of an offence under this section may order the person to comply with the direction under this section, in addition to or in substitution for any penalty for the offence.
(5)  This section does not affect the liability of a person:
(a)  under the Environmental Planning and Assessment Act 1979 for a contravention of a condition of a planning approval relating to the retirement of biodiversity credits, or
(b)  under Division 6 of Part 5A of the Local Land Services Act 2013 for a contravention of a condition of a vegetation clearing approval relating to the retirement of biodiversity credits.