You are using a version of the website built for webcrawlers and people whose devices cannot use javascript.
Some functionality will not be available.
Contents (2016 - 63)
Skip to content
Biodiversity Conservation Act 2016 No 63
Current version for 1 July 2019 to date (accessed 13 November 2019 at 16:38)
Part 7
Part 7 Biodiversity assessment and approvals under Planning Act
Division 1 Preliminary
7.1   Definitions: Part 7
In this Part:
activity means an activity within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979.
biodiversity development assessment report means a biodiversity development assessment report prepared by an accredited person, but does not include a report that is no longer eligible to be submitted because of section 6.15 (Currency of biodiversity assessment report) or that is withdrawn under section 6.14.
biodiversity offsets scheme threshold—see section 7.4.
Planning Agency Head means the Secretary of the Department of Planning and Environment.
species impact statement means a species impact statement prepared in accordance with Division 5.
threatened ecological communities do not include vulnerable ecological communities (except so much of any such community as comprises a threatened species).
7.2   Development or activity “likely to significantly affect threatened species”
(1)  For the purposes of this Part, development or an activity is likely to significantly affect threatened species if:
(a)  it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or
(b)  the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or
(c)  it is carried out in a declared area of outstanding biodiversity value.
(2)  To avoid doubt, subsection (1) (b) does not apply to development that is an activity subject to environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979.
7.3   Test for determining whether proposed development or activity likely to significantly affect threatened species or ecological communities, or their habitats
(1)  The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats:
(a)  in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,
(b)  in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity:
(i)  is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or
(ii)  is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,
(c)  in relation to the habitat of a threatened species or ecological community:
(i)  the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and
(ii)  whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and
(iii)  the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,
(d)  whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),
(e)  whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.
(2)  The Minister may, by order published in the Gazette with the concurrence of the Minister for Planning, issue guidelines relating to the determination of whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. Any such guidelines may include consideration of the implementation of strategies under the Biodiversity Conservation Program.
7.4   Exceeding biodiversity offsets scheme threshold
(1)  Proposed development exceeds the biodiversity offsets scheme threshold for the purposes of this Part if it is development of an extent or kind that the regulations declare to be development that exceeds the threshold.
(2)  In determining whether proposed development exceeds the biodiversity offsets threshold for the purposes of this Part, any part of the proposed development that involves the clearing of native vegetation on category 1-exempt land (within the meaning of Part 5A of the Local Land Services Act 2013) is to be disregarded.
Note.
 See section 6.8 (3)—any part of proposed development that involves such clearing of native vegetation is not required to be assessed under the biodiversity assessment method.
(3)  A regulation under this section may apply, adopt or incorporate a map published by the Environment Agency Head from time to time.
7.5   Relationship with Planning Act
(1)  This Part prevails to the extent of any inconsistency between this Part and the Environmental Planning and Assessment Act 1979 (or any instrument under that Act).
(2)  A reference in the Environmental Planning and Assessment Act 1979 or any other Act or in any statutory instrument or document to the Environmental Planning and Assessment Act 1979 (whether an express or implied reference) is a reference to that Act as applying in accordance with this Part.
7.6   Part does not apply to biodiversity certified land
This Part does not apply to development or activities on biodiversity certified land under Part 8.
Division 2 Biodiversity assessment requirements
7.7   Biodiversity assessment for Part 4 development (other than State significant development or complying development)
(1)  This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979, except:
(a)  an application for development consent for State significant development, or
(b)  an application for a complying development certificate.
(2)  If the proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report.
7.8   Biodiversity assessment for Part 5 activity
(1)  This section applies to environmental assessment under Part 5 of the Environmental Planning and Assessment Act 1979.
(2)  For the purposes of Part 5 of the Environmental Planning and Assessment Act 1979, an activity is to be regarded as an activity likely to significantly affect the environment if it is likely to significantly affect threatened species.
(3)  In that case, the environmental impact statement under Part 5 of the Environmental Planning and Assessment Act 1979 is to include or be accompanied by:
(a)  a species impact statement, or
(b)  if the proponent so elects—a biodiversity development assessment report.
(4)  If the likely significant effect on threatened species is the only likely significant effect on the environment, an environmental impact statement may be dispensed with and Part 5 of the Environmental Planning and Assessment Act 1979 applies as if references to an environmental impact statement were references to a species impact statement or biodiversity development assessment report.
7.9   Biodiversity assessment for State significant development or infrastructure
(1)  This section applies to:
(a)  an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 for State significant development, and
(b)  an application for approval under Division 5.2 of the Environmental Planning and Assessment Act 1979 to carry out State significant infrastructure.
(2)  Any such application is to be accompanied by a biodiversity development assessment report unless the Planning Agency Head and the Environment Agency Head determine that the proposed development is not likely to have any significant impact on biodiversity values.
(3)  The environmental impact statement that accompanies any such application is to include the biodiversity assessment required by the environmental assessment requirements of the Planning Agency Head under the Environmental Planning and Assessment Act 1979.
7.10   Regulations relating to amendments of lists of threatened species or ecological communities
The regulations may make provision for or with respect to the effect of amendments to the lists of threatened species and ecological communities during a biodiversity assessment under this Part.
Division 3 Consultation and concurrence
7.11   Consultation with Minister administering this Act if a Minister is consent authority under Part 4 or determining authority under Part 5
(1)  This section applies to the following:
(a)  development (not being State significant development or complying development) that requires development consent under Part 4 of the Environmental Planning and Assessment Act 1979 when a Minister is the consent authority,
(b)  an activity that requires environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979 when a Minister is the determining authority.
(2)  For the purposes of determining the application for any such development consent, the Minister concerned is to consult the Minister administering this Act if the development is likely to significantly affect threatened species. However, consultation is not required if the application is accompanied by a biodiversity development assessment report in accordance with Division 2 and the conditions of the consent require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of at least the number and class specified in the report.
(3)  For the purposes of any such environmental impact assessment, the Minister concerned is to consult the Minister administering this Act if the activity is likely to significantly affect threatened species. However, consultation is not required if the proponent has obtained a biodiversity development assessment report in accordance with Division 2.
(4)  In consulting under this section, the Minister administering this Act is to provide the Minister who is the consent authority or the determining authority with any recommendations made by the Environment Agency Head.
(5)  The Minister who is the consent authority or the determining authority is to give public notice of any such recommendation that the Minister has not accepted.
7.12   Concurrence of Environment Agency Head if a Minister is not consent authority under Part 4 or determining authority under Part 5
(1)  This section applies to the following:
(a)  development (not being State significant development or complying development) that requires development consent under Part 4 of the Environmental Planning and Assessment Act 1979 when a Minister is not the consent authority,
(b)  an activity that requires environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979 when a Minister is not the determining authority.
(2)  The consent authority is not to grant development consent if the development is likely to significantly affect threatened species, unless the consent authority has obtained the concurrence of the Environment Agency Head. However, concurrence is not required if:
(a)  the application for development consent is accompanied by a biodiversity development assessment report in accordance with Division 2, and
(b)  in a case in which the biodiversity offsets scheme applies to the impacts of the development—the conditions of the consent require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of at least the number and class specified in the report.
(3)  The determining authority is not to carry out the activity, or grant an approval to carry out the activity, if the activity is likely to significantly affect threatened species, unless the determining authority has obtained the concurrence of the Environment Agency Head. However, concurrence is not required if the proponent has obtained a biodiversity development assessment report in accordance with Division 2.
(4)  If the Minister administering this Act considers that it is appropriate, the Minister may elect to act in the place of the Environment Agency Head for the purposes of giving concurrence under this section. The Minister is required, in giving any concurrence, to consult the Environment Agency Head, to provide the consent authority or the determining authority with any recommendations made by that Agency Head and to give public notice of any such recommendation that the Minister has not accepted.
(5)  In determining whether to give a concurrence under this section, the Environment Agency Head or Minister (as the case requires) is to have regard to the following:
(a)  any species impact statement prepared for the development or activity and submissions made in response to it,
(b)  any biodiversity development assessment report prepared for the development or activity and the impacts of the development or activity on biodiversity values that will not be offset because biodiversity credits are not being retired as specified in the report,
(c)  whether the development or activity is likely to reduce the long-term viability of the threatened species or ecological communities in the bioregion (unless a biodiversity development assessment report has been prepared for the development or activity),
(d)  any further assessment report prepared by or on behalf of the proponent,
(e)  the facilitation of ecologically sustainable development.
(6)  A concurrence under this section may be conditional on the taking of action that the Environment Agency Head or Minister (as the case requires) considers will significantly benefit threatened species or ecological communities and to which the person required to take the action has agreed. Any such action may (without limitation) include the provision of biodiversity offsets (including the retirement of biodiversity credits in accordance with this Act).
(7)  The terms of a concurrence under this section may be varied by the person who gave the concurrence at any time before the consent authority or the determining authority acts on the concurrence.
(8)  A consent authority that grants consent, or a determining authority that grants approval, to the carrying out of development or an activity for which a concurrence under this section has been granted must grant the consent or approval subject to any conditions of the concurrence. This does not affect the right of the consent authority or determining authority to impose other conditions not inconsistent with the conditions of the concurrence or to refuse consent or approval.
(9)  A provision under the Environmental Planning and Assessment Act 1979 that deems consent to have been refused because concurrence has not been granted or refused within a specified period extends to a concurrence under this section.
Division 4 Biodiversity assessment and offsets
7.13   Development other than State significant development or infrastructure
(1)  This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 that is required under Division 2 to be accompanied by a biodiversity development assessment report, except:
(a)  an application for development consent for State significant development, or
(b)  an application for a complying development certificate.
(2)  The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.
(3)  If the consent authority decides to grant consent and the biodiversity offsets scheme applies to the proposed development, the conditions of the consent must require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the report (subject to subsection (4)). The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent to avoid or minimise the impact on biodiversity values of the proposed development (being measures on which the report was based).
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 consent authority may reduce or increase the number of biodiversity credits that would otherwise be required to be retired if the consent authority determines that the reduction or increase is justified having regard to the environmental, social and economic impacts of the proposed development. The consent authority must give reasons for a decision to reduce or increase the number of biodiversity credits.
(5)  A condition to retire biodiversity credits is required to be complied with before any development is carried out that would impact on biodiversity values. However, a consent to a concept development application may provide for a corresponding staged retirement of biodiversity credits before each stage of development is carried out and without the need for a further biodiversity development assessment report in connection with development applications for the subsequent stages of the development.
(6)  This section does not operate to limit the matters that a consent authority may take into consideration:
(a)  in relation to the impact of proposed development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts, or
(b)  in deciding whether to reduce or increase the number of biodiversity credits to be retired.
(7)  If a consent authority fails to include a condition relating to the retirement of biodiversity credits required by this section (or fails to give reasons for a decision to reduce or increase the number of biodiversity credits), the Environment Agency Head may impose or vary that condition in accordance with this section in the same manner used by the consent authority in granting the development consent.
7.14   State significant development or infrastructure
(1)  This section applies to an application for development consent for State significant development under Part 4 of the Environmental Planning and Assessment Act 1979, or an application for approval for State significant infrastructure under Part 5.1 of the Environmental Planning and Assessment Act 1979, that is required under Division 2 to be accompanied by a biodiversity development assessment report.
(2)  The Minister for Planning, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report. The Minister for Planning may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.
(3)  If the Minister for Planning decides to grant consent or approval and the biodiversity offsets scheme applies to the proposed development, the conditions of the consent or approval may require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values (whether of the number and class specified in the report or other number and class). The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent or approval to avoid or minimise the impact on biodiversity values of the proposed development.
(4)  A condition to retire biodiversity credits is required to be complied with before any development is carried out that would impact on biodiversity values. If the retirement of particular biodiversity credits applies to a stage of the development, compliance with the condition for their retirement is postponed until it is proposed to carry out that stage of the development.
(5)  This section does not operate to limit the matters that the Minister for Planning may take into consideration in relation to the impact of proposed development on biodiversity values, the measures that the Minister may require to avoid or minimise those impacts or the power of the Minister to refuse to grant consent or approval because of those impacts.
7.15   Part 5 activity
(1)  This section applies to an environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979 in respect of which the proponent has elected under Division 2 to obtain a biodiversity development assessment report.
(2)  The determining authority is to take into consideration under that Act the likely impact of the proposed activity on biodiversity values as assessed in the biodiversity development assessment report.
(3)  If the determining authority decides to carry out the activity or approve the carrying out of the activity and the biodiversity offsets scheme applies to the proposed activity, the conditions on which the activity is carried out or of the approval to carry out the activity may require the proponent to retire biodiversity credits to offset the residual impact on biodiversity values (whether of the number and class specified in the report or other number and class). The residual impact is the impact after the measures that are required to be carried out to avoid or minimise the impact on biodiversity values of the proposed activity.
(4)  If the number of biodiversity credits required to be retired is less than that specified in the biodiversity development assessment report, the determining authority is to give reasons for the decision to reduce the number of biodiversity credits.
(5)  A condition to retire biodiversity credits is required to be complied with before any activity is carried out that would impact on biodiversity values. If the retirement of particular biodiversity credits applies to a stage of the activity, compliance with the condition for their retirement is postponed until the carrying out of that stage of the activity.
(6)  This section does not operate to limit the matters that the determining authority may take into consideration in relation to the impact of any proposed activity on biodiversity values, the measures that the determining authority may require to avoid or minimise those impacts or the power of the determining authority to refuse to proceed with the activity or to grant approval for the activity because of those impacts.
7.16   Proposed development or activity that has serious and irreversible impacts on biodiversity values
(1)  In this section, serious and irreversible impacts on biodiversity values of proposed development or activity means serious and irreversible impacts on biodiversity values as determined under section 6.5 that would remain after the measures proposed to be taken to avoid or minimise the impact on biodiversity values of the proposed development or activity.
(2)  The consent authority must refuse to grant consent under Part 4 of the Environmental Planning and Assessment Act 1979, in the case of an application for development consent to which this Division applies (other than for State significant development), if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.
(3)  If the Minister for Planning is of the opinion that proposed State significant development or State significant infrastructure that is the subject of an application to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the Minister:
(a)  is required to take those impacts into consideration, and
(b)  is required to determine whether there are any additional and appropriate measures that will minimise those impacts if consent or approval is to be granted.
(4)  If the determining authority is of the opinion that the proposed activity to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the determining authority:
(a)  is required to take those impacts into consideration, and
(b)  is required to determine whether there are any additional and appropriate measures that will minimise those impacts if the activity is to be carried out or approved.
7.17   Modifications of planning approvals or activities
(1)  Subsection (2) applies to an application for the modification of a development consent, or State significant infrastructure approval, that was granted after the commencement of this Division.
(2)  The provisions of this Division relating to applications for development consent or State significant infrastructure approvals apply to any such application for modification as follows:
(a)  the provisions apply in relation to the original development as proposed to be modified,
(b)  a biodiversity development assessment report is required to be submitted and taken into consideration if this Division applies to the original development as proposed to be modified even if a biodiversity development assessment report was submitted in connection with the application for the original development or even if this Division did not apply to the original development (for example, because the modification results in the development exceeding the biodiversity offsets scheme threshold),
(c)  however a further biodiversity development assessment report is not required to be submitted if the authority or person determining the application for modification (or determining the environmental assessment requirements for the application) is satisfied that the modification will not increase the impact on biodiversity values,
(d)  the biodiversity development assessment report submitted with the application for modification is to take into account any measures already taken to avoid, minimise or offset the impact on biodiversity values in connection with the consent or approval before the proposed modification,
(e)  if an application for the original development as proposed to be modified would have been required to be refused because of serious and irreversible impacts on biodiversity values, the application for modification is required to be refused.
(3)  The regulations may make further provision with respect to any such applications for modification (including exemptions to the application of this section).
(4)  The regulations may make provision with respect to the application of this Division in relation to any modification of an activity for which the proponent elected to obtain a biodiversity development assessment report for the original activity.
7.18   Planning agreements—biodiversity offsets
(1)  A planning agreement under section 93F of the Environmental Planning and Assessment Act 1979 may make provision with respect to the offset of the impact on biodiversity values of proposed development (including by the retirement of biodiversity credits in accordance with this Act).
(2)  Any such provision for the retirement of biodiversity credits may provide for a deferred credit retirement arrangement under section 6.28.
7.19   Other environmental contributions not affected
This Part does not affect any other environmental contribution under:
(a)  a development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or
(b)  a State significant infrastructure approval under Part 5.1 of that Act, or
(c)  the approval of an activity by a determining authority referred to in Part 5 of that Act, or
(d)  a planning agreement under section 93F of that Act,
including any contribution for the conservation or enhancement of the natural environment by a monetary contribution or levy or by the dedication of land or other material benefit.
Division 5 Preparation of species impact statements
7.20   Form and content of species impact statement
(1)  A species impact statement for the purposes of this Part must be in writing signed by the principal author of the statement and by the applicant for development consent or the proponent of the activity proposed to be carried out (as the case requires).
(2)  A species impact statement must include a full description of the proposed development or activity and the information as to matters relating to the impact on threatened species or ecological communities as is required by the regulations.
(3)  A species impact statement must include details of the qualifications and experience in threatened species conservation of the person preparing the statement and of any other person who has conducted research or investigations relied on in preparing the statement.
(4)  The requirements of this section in relation to information concerning the State-wide conservation status of any species or ecological community are taken to be satisfied by the information in that regard supplied to the principal author of the species impact statement by the Environment Agency Head.
(5)  The regulations may make further provision for or with respect to the form and content of species impact statements.
7.21   Environment Agency Head’s requirements for species impact statements
(1)  The applicant for development consent or the proponent of the activity proposed to be carried out (as the case requires) must, for the purposes of the preparation of a species impact statement under this Part, request the Environment Agency Head to provide (and must comply with) any requirements notified to the applicant or proponent by the Agency Head concerning the form and content of the species impact statement.
(2)  The Environment Agency Head must notify any such requirements within 28 days after having been requested to provide them.
(3)  The Environment Agency Head may notify requirements that apply generally to the preparation of species impact statements or may notify separate requirements that apply to the particular species impact statement.
(4)  Despite anything to the contrary in this Part, the Environment Agency Head may:
(a)  vary the matters otherwise required to be included in a species impact statement in a particular case, or
(b)  dispense with the requirement of a species impact statement to assess the impact on biodiversity values that are required to be assessed in a biodiversity development assessment report submitted with the species impact statement, or
(c)  dispense with the requirement for a species impact statement in a particular case if the Agency Head is satisfied that the impact of the action concerned will be trivial or negligible.